
l!(i()k._..il.'"' 



1909 



RULES OF 
THE SUPREME COURT 

OF THE UNITED STATES 



ADOPTED JANUARY 7, 1884 



AND THE RULES OF PRACTICE FOR THE 

CIRCUIT AND DISTRICT COURTS OF 

THE UNITED STATES IN EQUITY 

AND ADMIRALTY CASES 



AND ORDERS IN REFERENCE TO 
APPEALS FROM COURT OF CLAIMS 



WASHINGTON 

GOVKRNMENT PRINTING OFFICE 
1909 



RULES OF 
THE SUPREME COURT 

OF THE UNITED STATES 'TfZ 

ADOPTED JANUARY 7, 1884 



AND THE RULES OF PRACTICE FOR THE 

CIRCUIT AND DISTRICT COURTS OF 

THE UNITED STATES IN EQUITY 

AND ADMIRALTY CASES 



AND ORDERS m REFERENCE TO 
APPEALS FROM COURT OF CLAIMS 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1909 



n. nr o. 

PFP 87 1909 






o 

INDEX TO RULES OF THE SUPREME 
COURT. 



Rules. 

Adjournment 27 

Admiralty, record in 8 

Appearance of counsel 9 

for plaintiff, no 16 

defendant, no 17 

either party, no 18 

Appeals in cases involving jurisdiction of circuit court 32 

under act of March 3, 1891 36 

Argument, oral 22 

order of 22 

time allowed for 22 

on motions 6 

printed 20 

submission on 20 

not received after submission 20 

Assignment of errors 21 

under act of March 3, 1891 35 

Attachment for clerk's fees 10 

Attorneys, admission of 2 

oath of 2 

Bail, when and how granted 36 

Bill of exceptions 4 

Briefs 21 

contents of 21 

time for filing by plaintiff in error or appellant 21 

defendant in error or appellee 21 

form of printed 21 

not received after argument 20 

Cases involving same question may be heard together 26 

passed, how restored to call 26 

dismissal of, in vacation 28 

Certiorari 14 

Circuit courts of appeals, cases from, etc 36 and 37 

Citation, service of 8 

Clerk 1 

Clerk's fees, table of 24 

attachment for 10 

Conference-room library 7 

Costs of printing record 10 2, 

how taxed 24 

none recoverable in cases where United States is party. 24 

3 



Sec. I 


'age. 


— 


42 


6 


29 


3 


SO 


— 


35 


— 


35 


— 


35 


— 


44 


— 


46 


— 


38 


1 


38 


3 


38 


2 


26 


— 


26 


1 


36 


4 


36 


2,4 36,37 


1 


45 


8 


31 


1 


25 


2 


25 


2 


46 


— 


26 


— 


36 


2 


36 


1 


26 


3 


37 


— 


36 


4 


36 


8 


42 


9 


42 


— 


42 


— 


33 


— 


46 


5 


29 


— 


25 


7 


39 


8 


31 


3 


28 


,6,7 30,31 


— 


39 


4 


39 



4 INDEX TO EULES OF THE SUPREME COURT. 

Rules. Sec. Page. 

Counsel, admission of 2 1 25 

appearance of 9 3 30 

no appearance of 18 — 35 

two only to be heard on argument 22 2 38 

time allowed for argument 22 ■ 3 38 

motions 6 2 26 

Custody of prisoners on habeas corpus 34 — 44 

Damages for delay 23 2 38 

Defendant, no appearance of 17 — 35 

Death of a party 15 — 33 

defendant in error or appellee after judgment in 

lower court 15 3 34 

Dismissal in vacation 28 — 42 

Docketing cases 9 — 29 

by plaintiff in error or appellant 9 1 29 

defendant in error or appellee 9 2 29 

Docket, call of 26 — 41 

day-call 26 2 41 

Errors, assignment of 21 4 37 

specification of 21 2 36 

Evidence, new, how taken 12 1 32 

in admiralty 12 2 32 

in the record, objections to 13 — 33 

Exceptions, bill of 4 — 26 

Exhibits of material 33 — 44 

Fees, table of clerk's 24 7 39 

attachment for 10 8 31 

security for 10 1 30 

Habeas corpus, custody of prisoners on 34 — 44 

Interest 23 — 38 

in admiralty 23 4 38 

inequity 23 3 38 

at law 23 1 38 

under act of March 3, 1891 38 — 47 

Jurisdiction — cases involving circuit court 32 — 44 

Law library 7 — 27 

mode of obtaining books from, by counsel 7 1 27 

clerk to deposit records in 7 2 28 

of conference-room 7 3 28 

Mandates 39 — 47 

Mandate in case dismissed 24 5 39 

in vacation 28 — 42 

Motions 6 — 26 

to be in writing 6 1 26 

notice of 6 3,4 26,27 

time allowed for argument 6 2 26 

toaffirm. 6 5 27 

to dismiss 6 4 27 

notice and service of briefs 6 4 27 



INDEX TO RULES OF THE SUPREME COURT. 5 

Rules. Sec. Page. 

Motions, submission of 6 

to advance 26 

cases once adjudicated 26 

criminal cases 26 

revenue cases 26 

cases involving jurisdiction of circuit 

court 32 

Motion-day 6 

Opinions of the Supreme Court 25 

court below to be annexed to record 8 

Original papers not to be taken from court room or clerk's 

office 1 

from court below 8 

Parties, death of 15 

Plaintiff, no appearance of 16 

Practice 3 

Process, form of 5 

service of 5 

Record 8 

return of 8 

to contain all necessary papers in full 8 

opinion of court below 8 

translations of papers in foreign language . . 11 

printed under supervision of clerk 10 

printed form of 31 

printing parts of 10 

cost of 10 

certiorari for diminution of 14 

in admiralty cases 8 

in cases coming up under act of March 3, 1891 37 

how printed 35 

Rehearing 30 

Representatives of deceased parties appearing 15 

not appearing 15 

Return to writ of error 8 

day 8 

Revenue cases advanced on motion 26 

Second term, neither party ready for trial 19 

Security for clerk's fees 10 

Subpoena, service of 5 

Supersedeas 29 

Translations 11 

Writ of error, return to 8 

in cases involving jurisdiction of circuit courts. 32 

under act of March 3, 1891 36 

Order in reference to appeals from Court of Claims — 

Equity rules — 

Admiralty rules — 



4 


27 


6 


41 


4 


41 


3 


41 


5 


41 





44 


6 


27 


— 


40 


2 


28 


2 


25 


4 


28 


— 


33 


— 


35 


— 


25 


1 


26 


2,3 


26 


— 


28 


1 


28 


3 


28 


2 


28 


— 


32 


5 


31 


— 


43 


9 


31 


2 


30 


— 


33 


6 


29 


— 


46 


2 


45 


— 


43 


1 


33 


2 


34 


— 


28 


5 


29 


5 


41 


— 


35 


1 


30 


3 


26 


— 


43 


— 


32 


— 


28 


— 


44 


— 


46 


— 


48 


— 


51 


— 


83 



INDEX TO EQUITY RULES. 

Rule. Page. 
Abatement, how suits may be revived on abatement by 

death of either party 56 68 

Accounts, how same produced before master 78 77 

Afladavit of defendant to accompany demurrers or pleas 31 60 

Affirmation, when to be made in lieu of oath 91 80 

Amendment, general provisions respecting bills 28-30 59-60 

when plaintiff may amend, as matter of 

course 28 59 

after answer, plea, demurrer, or replication . . 29 60 

when amendment shall be deemed abandoned 30 60 
of bills by leave of court when matter alleged 

in answer makes amendment necessary 45 65 

plaintiff not entitled as of course to amend 
where he proceeds to a hearing, notwith- 
standing objection for want of parties taken 

by answer 52 66 

when answers may be amended 60 69 

Answers, filing of 1 51 

taxable costs for 25 58 

general provisions respecting 39-46 62-65 

as to contents of 39-40 62-63 

provisions as to answer of defendant where com- 
plainant waives answer under oath 40 63 

to certain interrogatories in bill 40 63 

effect of defendant declining to answer interroga- 
tories 44 64 

provisions as to supplemental 46 65 

before whom verified 59 69 

how and when amended 60 69 

general provision as to exceptions to 61-65 69-71 

time for filing exceptions to 61 69 

provisions for costs where separate answers are 

filed by same solicitor 62 70 

hearing exceptions to answer for insufficiency 63 70 

proceedings when exceptions to answer are 

allowed on hearing 64 70 

proceedings when exceptions to answer are over- 
ruled 65 71 

where answer to original bill shall be made before 
original plaintiff can be compelled to answer 

crossbill 72 75 

7 



8 INDEX TO EQUITY KULES. 

Rule. 

Appeals, provisions as to suspending or modifying injunc- 
tions during the pendency of an appeal 93 81 

Appearance, when defendant must appear 17 55 

Argument. {See Hearing.) 

Attachment, provisions as to writ of 7 53 

attachment after final 

decree .8 53 

when writ of, attachment to issue to compel 
defendant to make a better answer to the 

matter of exceptions 54 67 

by master for his compensation 82 78 

Bills, filing of 1 51 

when bills may be taken pro confesso against the de- 
fendant, and proceeding thereon 18 56 

decree may be entered when bill is taken pro 

confesso 19 56 

general frame of 20-25 57-58 

commencement and ending of 20 57 

provisions as to contents of 21 57 

respecting necessary or 

proper parties 22 57 

prayer in 23 58 

how signed by counsel 23 58 

taxable costs for 25 58 

several provisions as to scandal and impertinence in . 26-27 58-59 

general provisions as to amendment to 28-30 59-60 

provisions as to interrogatories in the interrogating 

part of 41-43 63-64 

amendment of, by leave of court when matter alleged 

in answer makes amendment necessary 45 65 

general provisions as to parties to 47-53 65-67 

nominal parties to 54 67 

brought by stockholders in a corporation against the 
corporation and other parties; how verified, and 

what allegations must be contained therein 94 81 

Bills of revivor, general provisions as to same 56-58 68 

contents of 58 68 

Certificate of counsel to accompany demurrers and pleas ... 31 60 

Circuits courts always to be open for certain purposes 1 51 

provisions as to the making of rules by judges 

thereof 89 80 

Clerk, duties of same 2 51 

to enter motions, rules, orders, etc., in order book. . . 4 52 
certain motions and applications grantable of course 

by clerk 5 52 

Clerk's office, provisions as to same 2 51 

Commissioners for taking testimony, how to be named 67 71 

how witnesses may be compelled to appear 

before them and testify 78 77 



INDEX TO EQUITY RIFLES. \) 

Rule. Page. 

Commissions, issuing and return of 1 51 

when and how to issue 67 71 

provisions as to publication and opening 

same in clerk's office 69 74 

Corporations, bills brought by stockholders in a corporation 
against the corporation and other parties, how verified and 

what allegations must be contained therein 94 81 

Costs, where separate answers are filed and the same 

solicitor is employed for two or more defendants. . . 62 70 
provisions for payment of, when exceptions for frivo- 
lous causes or delay are filed to master's report 84 79 

Counsel, signature of, to be affixed to bill, provisions as to 

same 24 58 

Cross bill, provisions as to same 72 75 

Death, how suits may be revived on death of either party. . 56 68 

De bene esse examination, when and how same may be taken . 70 74 

Decree, provisions as to entry of decree when bill is pro 

confesso against the defendant 18-19 56 

for an account of the personal estate of a testator or 

intestate on reference to master, etc 73 75 

corrections of clerical mistakes in 85 79 

contents of 86 79 

what the decree in a suit for foreclosure of a mort- 
gage may provide for 92 81 

Default of defendant, proceedings that may be taken thereon 18 56 

when decree may be entered and bill taken pro 

confesso 19 56 

Defendant, when he must appear 17 55 

bills may be taken pro confesso against 

defendant, and proceedings thereon ... 18 56 

decree may be entered and bill taken pro 

confesso against the defendant 19 56 

Demurrers, general provisions as to 31-38 60-62 

to be accompanied by certificate of counsel, etc., 

provisions respecting 31 60 

to what defendant may demur 32 61 

proceedings by plaintiff on demurrer 33 61 

provisions as to case where demurrer is over- 
ruled 34 61 

provisions as to case where demurrer is allowed . . 35 61 

where demurrer will not be overruled 36, 37 62 

effect of not setting down demurrer for argument 

at certain time 38 62 

time when demurrer is to be set down for argu- 
ment 38 62 

Depositions, how taken when evidence is to be taken oraUy . 67 71 

testimony is to be taken by deposition 

according to act of Congress 68 74 



10 INDEX TO EQUITY EULES. 

Rule. Page 
Depositions, provisions as to publication and opening of 

same in clerk's office 69 74 

Discovery, provision as to the filing of a cross bill for 72 75 

Dismissal, when bill shall be dismissed 38 62 

court may dismiss a bill where plaintiff proceeds 
to a hearing, notwithstanding objection for 

want of parties, taken by answer .52 66 

of suit for failure to file replication 66 71 

Evidence, how taken down before master in certain cases. . 81 78 

Examination, how to take and return depositions of witnesses 

examined orally 67 71 

Examiner, how witnesses may be compelled to appear 

before him and testify 78 77 

Exceptions, provisions as to exceptions to bills for scandal 

and impertinence. - 26-27 58-59 

hearing exceptions to answer for insufficiency. . 63 70 

proceedings when exceptions to answers are 

allowed on hearing 64 70 

to report of master, time of filing exceptions 
thereto, and confirmation of report if no ex- 
ceptions are filed 83 78 

provisions to prevent the filing of exceptions to 

reports for frivolous causes or delay 84 79 

Execution, writ of, provision as to same 8 53 

Filing of pleadings, etc 7 53 

Foreclosure, what the decree in a suit for foreclosure of a 

mortgage may provide for 92 81 

Guardians ad litem, how appointed 87 79 

Hearing, case when defendant, by answer, suggests that bill 

is defective for want of parties 52 66 

proceedings for hearing where exceptions are filed 

to answer 63 70 

of reference before master, when to be brought on. 74 75 

Impertinence in bills not permitted; will be struck out on 

exception 26 58 

general provisions as to elimination of imper- 
tinence in bills 26-27 58-59 

Infants, how they may sue 87 79 

Injunctions, provisions as to the granting of injunctions when 

asked for by bill to stay pro- 
ceedings at law 55 67 

suspending or amending injunc- 
tions during the pendency of 

an appeal... 93 81 

Interrogatories, provisions as to the interrogating part of 

bills... 41-43 63-64 

form of last of the written interrogatories to 
take testimony 71 75 



INDEX TO EQUITY EULES. 11 

Rule. Page. 

Issue, suit when deemed at issue 66 71 

Judges, provisions as to granting orders, etc., by judges of 

circuit court in vacation and term 3 51 

Marshal, provisions as to service of process by 15 55 

Master, general provisions as to reference to and proceedings 

beforethem 73-82 75-78 

reference to, if any decree for account of personal es- 
tate of a testator or intestate 73 75 

when to be brought on for hearing 74 75 

proceedings on reference before 75 76 

what report of master, on reference before him shall 

contain 76 76 

power of same on reference 77 76 

how witnesses may be compelled to appear before 

him and testify on reference 78 77 

form in which accounts shall be produced before 

him 79 l1 

what paper may be used before him on a reference. 80 77 
persons whom master is at liberty to examine on 

reference 81 78 

in chancery, how appointed 82 78 

provisions as to the filing of master's report and the 

filing of exceptions thereto 83 78 

Mistakes in decree, etc., how corrected 85 79 

Motions, when they may be made in courts of equity 1 51 

what are to be deemed motions and applications 

grantable of course 5 52 

not grantable of course, how and when 

heard 6 52 

Notice, provisions for notice of application for certain orders . 3 51 

what to be deemed notice in certain cases 4 52 

to be given for examination of witnesses 67 71 

provisions as to notice ioxde bene esse examination of 

witnesses 70 74 

Oath {see Affirmation) 91 80 

Orders, when they may be made in courts of equity 1 51 

Parties, court may make a decree saving rights of absent par- 
ties at trial where defendant suggests a defect 53 67 

provisions as to nominal parties to bill 54 67 

to bills, when court may proceed without making 

certain persons parties 47 65 

parties may be dispensed with 

when very numerous, etc 48 65 

not necessary to make cestuis que trust 

parties to suit 49 66 

in suits to execute trust in a will 50 66 

in cases of a joint and several demand 

either as principals or sureties 51 66 



12 INDEX TO EQUITY EULES. 

Rule. Page. 
Parties, to bills, provisions for the hearing of a case when 
defendant by answer suggests that bill is defective for 

want of parties 52 66 

Petitions for rehearing, when they can be applied for 8& 80 

Pleadings, filing of 1 51 

Pleas, to be accompanied by certificate of counsel, etc., pro- 
visions respecting same 31 60 

to what defendant may plead 32 61 

proceedings by plaintiff. 33 61 

Practice, how regulated when the rules of the United States 

Supreme Court or the circuit courts do not apply 90 80 

Process, issuing and return of . . . , 1 51 

final process defined 7 53 

mesne process defined 7 53 

when writ of assistance to issue 9 54 

^ provisions as to same in cases where a person not a 

party to a cause is served 10 54 

service of same 11-16 54-55 

by whom served, and entry of proof of service re- 
quired 15 55 

ProcAew amies, provisions as to the same 87 79 

Reference, general provisions as to reference to and pro- 
ceedings before masters 73-82 75-78 

to master of any decree for account of personal 

estate of a testator or intestate 73 75 

when reference to master is to be brought on for 

hearing 74 75 

before master, proceedings on 75 76 

what reports of master on reference before him 

^^ shall contain 76 76 

power of master on 77 76 

how witnesses may be compelled to appear 

before master or examiner and testify 78 77 

form in which accounts shall be produced before 

master 79 77 

what papers may be used before master on 80 77 

who may be examined by master on 81 78 

Rehearing, provisions as to same 88 80 

Replication, no special replication to answer to be filed 45 65 

general provisions as to 66 71 

Report by master on reference, what to contain 76 76 

of master not to be retained as security for compen- 
sation 82 78 

when to be filed and time of filing excep- 
tions thereto, etc 83 78 

provisions to prevent the filing of exceptions to re- 
ports for frivolous causes or delay 84 79 

Rules, when they may be made in courts of equity 1 51 



INDEX TO EQUITY RULES. 13 

Rule. 



Rules, provisions as to making of rules by judges of circuit 

courts 89 80 

Scandal, general provisions as to elimination of scandal in 

biUs 26-27 58-69 

in bills not permitted. Will be struck out on 

exception 26 58 

Service, provisions as to service of process 11-16 54-55 

Stockholders, bills brought by stockholders in corporation 
against the corporation and other parties, how vertified, 

and what allegations must be contained therein 94 81 

Subpoena, provisions respecting 7 53 

when to issue 11 54 

who to issue same, when it may be issued, and 

how returnable 12 54 

general provisions as to same, how served 13 55 

when and how issued 14 55 

by whom served, proof of service required 15 55 

proceedings on retm-n of, served 16 55 

Supplemental answers, provisions as to same 46 65 

biUs, when granted, and provisions respect- 
ing same 57 68 

contents of 58 68 

Testimony, when taken by commission 67 71 

orally 67 71 

time for various parties to take testimony where 

evidence is to be taken oraUy 67 71 

how to be taken by deposition according to act 

of Congress 68 74 

general provisions as to time of taking 69 74 

when and how same may be taken de bene esse 70 74 

form of last interrogatory 71 75 

Time may be abridged in certain cases 4 52 

when subpoena is returnable 12 54 

for appearance of defendant 17 55 

when bill may be taken yro confesso against defendant . 18 56 

for entry of decree when bill is pro confesso 19 56 

provisions relating generally to time in which bills 

may be amended, etc 28-30 59-60 

for filing new or supplemental answer 46 65 

to have case set down for argument when defendant by 

answer suggests defective bill for want of parties. . . 52 66 

when suits will stand revived as of course 56 68 

. for pleading to supplemental bill 57 68 

filing exceptions to answer for insufiiciency 61 69 

parties to suits to take testimony when evidence is 

to be taken orally 67 71 

general provisions respecting time of taking testimony . 69 74 

for filing exceptions to report of master 83 78 



14 INDEX TO EQUITY EULES. 



Rule. Page. 



Verification, bills brought by stockholders against the cor- 
poration and other parties, how verified and what allega- 
tions must be contained therein 94 81 

Witnesses, how examined when evidence is to be taken 

orally 67' 71 

compelled to attend 67 71 

when and how some may be examined de 

hene esse 70 74 

before commissioner or master or examiner, how 

compelled to appear and testify 

when same may be examined in open court 

Writ of assistance, provisions as to same 

when to issue 

Writ of sequestration, provisions as to same 

when to issue 



78 


77 


78 


77 


7 


53 


9 


54 


7 


53 


8 


53 



INDEX TO ADMIRALTY RULES. 



Rule. Page. 

Admiralty, provisions for amendment of libels in 24 89 

where third party is permitted to intervene in 

suits in rem 34 92 

how stipulations in, are to be given and taken. . 35 92 

when libellant deemed in default 39 93 

Adverse proprietors 20 87 

Affirmance, provisions as to affirmance in suits in rem 26 89 

Affirmation {see also Oath) 26-32 89-91 

33-37,48 91-92,95 
Agent, provisions as to verification of claim by agent, in 

suits in rem 26 89 

Amendments, provisions for, in informations and libels in 

causes of admiralty and mar- 
itime jurisdiction 24 89 

amendment of libel where 

answer alleges new facts 51 96 

Answer of defendant to all libels in civil and maritime 

causes, contents of , etc 27 90 

exceptions to 28 90 

effect of defendant omitting or refusing to answer 

libel on retiu-n day, etc 29 90 

provisions for attachment when answer is not filed, 

or exceptions taken thereto 30 90 

where answer would expose defendant 
to prosecution or punishment for 

crime, etc 3 91 

as to right of defendant to require per- 
sonal answer of libellant, upon oath, 
to interrogatories at close of answer; 
proceedings on default of due answer . 32 91 

when oath or affirmation of either libellant or de- 
fendant to answer an interrogatory may be 

dispensed with 33 91 

to what exceptions to answer may be taken 36 92 

by garnishee, in cases of foreign attachment, provi- 
sions respecting 37 92 

not to be verified where amount in dispute does not 
exceed |50 48 95 

15 



16 INDEX TO ADMIEALTY KULES. 

Rule. Page. 

Appeal, how stipulations on, are to be given 35 92 

from district to circuit courts, how, when, and 

within what time made 45 94 

further proof, how taken in a circuit court upon an 

admiralty appeal 49 95 

further proof, when taken, to be used in evidence 

on 50 96 

provisions as to what shall be contained in, and 
what shall be omitted from records on appeal from 

district to circuit courts 52 96 

Arrests, provisions as to bills, etc., where simple warrant of 

arrest issues in suits in personam 3 83 

amount for which warrant of arrest in suits in per- 
sonam m&y issue 7 85 

warrant of arrest of ship, etc., in suits in rerrif when, 

how, and by whom issued and served 9 85 

provisions for sale of perishable articles arrested.. 10 85 

proceedings when ship is arrested in suits in rem.. . . 11 86 

of ship in petitory and possessory suits, provisions 

for 20 87 

provisions as to bail in certain cases, in suits in per- 
sonam 47 95 

Assault on the high seas, suits for, how brought 16 87 

Attachment in suits in personam where goods, chattels, etc., 

are attached 4 84 

provisions for attachment against defendant to 

compel further answer to libel, etc 30 90 

may issue to compel answer by libellant to in- 
terrogatories in defendant's answer 32 91 

against party having possession of freight or 
other proceeds of property attached in pro- 
ceedings in rer/i : 38 93 

Bail, provisions as to bail where a simple warrant of arrest 

issueB in bmUs in personam 3 83 

in suits in personam, when and how reduced 6 84 

when and how new sureties may be required 6 84 

to be taken in suits in personam 47 95 

Beating 16 87 

Bonds in cases of arrest in suits in personam 3 83 

when goods, chattels, etc., are attached in suits in 

personam 4 84 

provisions as to bonds to be given on dissolving at- 
tachment in suits in personam 4 84 

how, when , and before whom given and taken 5 84 

in suits in personam, when and how bail is reduced.. 6 84 

when and how new sureties may be required on 6 84 

Bottomry bonds, suits on, how prosecuted 18 87 



INDEX TO ADMIRALTY RULES. 17 

Rule. Page. 
Claimant, provisions as to stipulation by claimant of property 

in suits -in rem 4 84 

in suits in rem, how party claiming property shall 

verify claim 26 89 

Claims, how proof of claims are made under the limited lia- 
bility act 55 99 

Clerks, provisions as to what clerks of district courts shall put 

in records on appeals to circuit court 52 96 

Collision, suits for collision, how prosecuted 15 86 

provisions as to proceedings by claimant of ves- 
sel, or respondent proceeded against in perso- 
nam, against any other vessel contributing to 

same collision 59 101 

Commissioners, provisions as to reference to, and powers of 

same 44 94 

Commissioners, when to issue to take answer of defendant in 

certain cases 33 91 

provisions for issuing a commission to take 
further proof in a circuit court on an admi- 
ralty appeal 49 95 

Consignee, provisions as to verification of claim by consignee, 

in suits m rem 26 89 

Costs, to be paid by defendant on opening default in answer- 
ing 29 90 

in case of intervention respecting proceeds of sale in 
registry of court where claim is deserted dr dis- 
missed 43 94 

Crime, defendant may object by answer to answer allegation 
that would expose him to prosecution and punishment for 

crime, etc 31 91 

Cross libel, general provisions as to same 53 98 

Decree, provisions for writ of execution on final decree for 

payment of money 21 88 

Default, provisions as to default if defendant omit or refuse 

to answer the libel in time 29 90 

when and how default may be set aside 29 90 

dismissal of liabel on default of due answer by 

libellant to interrogatories in answer 32 91 

libellant in admiralty suits, when deemed in de- 
fault 39 93 

when decree rendered against defendant by de- 
fault may be reopened 40 93 

Depositions, provisions for taking further proof in a circuit 

court on an admiralty appeal by 

deposition 49 95 

either party taking further evi- 
dence of same witnesses, etc. . . 50 96 

10873—07 2 



18 INDEX TO ADMIRALTY RULES. 

Rule. Page. 
Dismissal of libel on default of due answer by libellant to in- 
terrogatories in answer 32 91 

when libel may be dismissed on default of libellant . 39 93 

Evidence, oral evidence in nature of further proof in a circuit 

court on an admiralty appeal, how taken 49-50 95-96 

Exceptions, answer, provisions as to 28 90 

provisions for attachment against defendant . 
where libel is not filed and exceptions taken 

thereto 30 90 

to libel, allegation, or answer, to what they may 

be taken 36 92 

Execution, when summary execution to issue when bond or 
stipulation is given where a simple warrant of 

arrest in suits m personam 3 83 

when summary execution to issue when bond or 
stipulation is given on an attachment being 

dissolved in suits m personam 4 84 

nature of, in cases of final decree for payment of 

money 21 88 

Fieri facias {see Execution) 21 88 

Foreign port, suits for moneys taken up in foreign port for 

supplies, repairs, etc., how brought 17 87 

Forfeiture {see Crime) 31 91 

Freight, proceedings against ship and freight in rem by ma- 
terial men 12 86 

proceedings against ship and freight in rem for mari- 
ners' wages 13 86 

suits against ship and freight, how brought, when 

founded upon a mere maritime hypothecation of 

moneys in a foreign port for supplies, repairs, etc. . 17 87 

provisions where freight or other proceeds attached 

in suits in rem are in the hands or possession of 

any party 38 93 

Further proof, how taken in a circuit court upon an admiralty 

appeal 49 95 

when taken, to be used in evidence on appeal. 50 96 

Garnishee, provisions as to same on foreign attachment 37 92 

Impertinence, provisions for exceptions to 36 92 

Imprisonment for debt on process from admiralty court 

abolished in certain cases 47 95 

Informations, contents of informations and libels of informa- 
tion upon seizures for any breach of the 
revenue or navigation or other laws of the 

United States 22 88 

provisions as to amendment of 24 89 

Interrogatories at close of libel, how answered 27 90 

Interveners, how third party is permitted to intervene 34 92 

stipulations given by, are to be given and 
taken 35 92 



INDEX TO ADMIRALTY RULES. 19 

Rule. Page. 
Interveners, proceedings by intervener respecting claim for 

delivery to him of proceeds 43 94 

Irrelevancy, provisions for exceptions to libel, etc., for 36 92 

Libel to be filed before mesne process issues 1 83 

contents to libel and informations upon seizures or any 
breach of the revenue, navigation, or other 

laws of the United States 

of, in instance causes similar to maritime 23 88 

provisions for amendment of informations in causes of 

admiralty and maritime jurisdiction. . . 24 89 

stipulation by defendant with sureties in 

case of libel in personam 25 89 

contents of answer to allegations in libel 27 90 

when same may be taken pro confesso 29 90 

oath or affirmation of either libellant or defend- 
ant to an answer to an interrogatory may be 

dispensed with 33 91 

to what exceptions to libel may be taken 36 92 

when and how libel may be granted where answer 

alleges new facts : 51 96 

where filed, contents thereof, and proceed- 
ings on filing same under limited liabil- 
ity act 54-57 98-100 

provisions as to proceedings by claimant of vessel or 
respondent proceeded against in personam against any 

other vessel contributing to same collision 59 101 

Libellant may be required by defendant to make personal 
answer upon oath to interrogatories in answer; 

proceedings on default of due answer 32 91 

in admiralty suits, when deemed in default 39 93 

Limited liability, rules as to proceedings under the limited 

liability act 54-58 98-100 

rules to apply to the circuit courts where 
cases are pending on appeal from district 

courts 58 100 

Mariners' wages, suits for same, how prosecuted 13 86 

attachment in suits for, against party having 
possession of freight or other proceeds of 
property attached in proceedings m rem.. 38 93 

Maritime causes, contents of libel in instances causes 23 88 

provisions for amendment of libels in 24 89 

contents of answer in circuit court in 27 90 

where third party is permitted to intervene in suits 

in rem in 34 92 

how stipulations in, are to be given and taken . . 35 92 

when libellant deemed in default 39 93 

hypothecation, suits founded upon, how brought. . . 17 87 



20 INDEX TO ADMIRALTY RULES. 

Rule. 

Marshal to serve process 1 83 

take bail on a simple warrant of arrest in suits in 

personam. 3 83 

serve warrant of arrest against ship, etc., in suits 

in rem ' 9 85 

levy execution in cases of final decree for payment 

of money 21 88 

make sales of property under decree, etc 41 93 

when to take bail in suits in personam 47 95 

Master, proceedings against, for maritimer 's wages 13 86 

suits for damages by collision against . 15 86 

upon a mere maritime hypothecation of masted: 
in foreign port for moneys taken up for sup- 
plies, etc., how prosecuted 17 87 

Material men, how they may proceed 12 86 

Mesne process {see Process) 1-2 83 

Monition, when to issue to third person in suits in rem 8 85 

provision for, in petitory and possessory suits 20 87 

Navigation, contents of informations and libels of information 
upon seizures for any breach of the revenue, navigation, or 

other laws of the United States 22 88 

Necessaries, suits founded on hypothecation by master for 
moneys taken up in foreign port for supplies, repairs, etc., 

how prosecuted 17 87 

Oath, when oath or affirmation either of libellant or defendant, 
to an answer to an interrogatory may be dispensed 

with 33 91 

provisions as to oaths and suits in rem 26 89 

or affirmation of libellant required to interrogatories 

at close of defendant's answer 32 91 

garnishee to answer in cases of 
foreign attachment, provisions re- 
specting 37 92 

to answer not necessary, where 
amount in dispute does not "ex- 
ceed $50 48 95 

Objection may be taken by defendant by answer to answer 
an allegation which would expose him to punishment for 

crime, etc 31 91 

Part owners, nature of process in petitory and possessory 

suits between them 20 87 

Penal offense. {See Crime.) 
Penalty. {See Crime.) 

Perishable property. Provisions for sale of 18 87 

Petitions, when, where, and how filed under the limited 

liability act, and provisions thereunder 54-57 98-100 

Petitory suits, nature of process in 20 87 

Pilotage, suits for, how prosecuted 14 86 



INDEX TO ADMTRALTY EULES. 21 



Eule. 

Possessory suits, nature of process in 20 87 

Practice, provisions for , when not provided for by these rules . 46 95 

Proceeds of property sold under decree, disposition of 41 93 

disposition of moneys resulting from proceeds of 

sale after payment into court 42 94 

Proceedings by intervenor respecting claim for delivery to 

himof 43 94 

Process, when mesne process to issue from district court 1 83 

by whom served 1 83 

in what mesne process consists in suits m personam. 2 83 

nature of, and how and by whom served in suits in 

rem 9 85 

process in petitory and possessory suits 
between part owners and adverse pro- 
prietors 20 87 

effect of defendant omitting or refusing to answer 

libel on return day of process, etc 29 90 

provisions for compulsory process in personam, 
against garnishee in cases of foreign attachment.. 37 92 

Proof of claims {see Claims) 55 99 

Records on appeals from district to circuit courts, what to 

contain and what not to contain 52 96 

Reference, provisions as to reference by court to commis- 
sioners 43 94 

Registry of court, proceeds of sale of property under decree to 

be paid into 41 93 

disposition of moneys after they have so 

been paid into 42 94 

proceedings by intervenor respecting claim 
for delivery to him of proceeds in, etc. . 43 94 
Rehearing, provisions as to same when decree has been en- 
tered against defendant, by default 40 93 

Repairs, suits founded on hypothecation by master for 
moneys taken up in foreign port for supplies, repairs, etc., 

. how prosecuted 17 87 

Return-day, effect of defendant omitting or refusing to answer 

libel on return-day, etc 29 90 

Return of arrest 9 85 

Revenue, contents of informations and libels of information 
upon seizures for any breach of the revenue, navigation, or 

other laws of the United States 22 88 

Sale of perishable articles, etc., provisions for 10 85 

proceedings as to sale of ship when arrested in suits in 

rem 11 86 

of property; by whom made, and disposition of pro- 
ceeds 41 93 

disposition of moneys resulting from proceeds of sale, 
after payment into court 42 94 



22 INDEX TO ADMIRALTY RULES. 

Rule. Pa^e. 

Salvage, suits for, how prosecuted 19 87 

attachment against party having possession of freight 
or other proceeds of property attached in proceed- 
ings in rem in salvage cases 38 93 

Scandal, provisions for exceptions to, in libel, etc ' 36 92 

Security, provisions for, in petitory and possessory suits 20 87 

as to security to be given by respondent 

in cross libel 53 98 

Seizures, contents of informations and libels of information 
upon seizures for any breach of the revenue, navigation, or 

other laws of the United States . 22 88 

Service of warrant of arrest against ship, etc., in suits in rem, 

how and by whom made 9 85 

Ship, proceedings when ship is aiTested in suits in rem 11 86 

against, in rem by material men 12 86 

for mariners' wages 13 86 

suits for pilotage against 14 86 

collision against 15 86 

against, how brought when founded upon a mere 
maritime hypothecation of master for moneys in 

a foreign port for supplies, repau-s, etc 17 87 

arrest of, in petitory and possessory suits, provisions 

for 20 87 

Stipulation. (See also Bonds.) 

by defendant in case of libel in personam, pro- 
visions for 25 89 

provisions as to stipulation by claimant of prop- 
erty in suits in rem 26 89 

to be given by intervener in suits in rem; pro- 
visions respecting same 34 92 

when given by intervener, or appeal, or on 
appeal, or on any other maritime or admiralty 

proceedings, how to be given 35 92 

Suits in personam , nature of process in 2 83 

provisions for taking bail where a simple 
warrant of arrest issues, and proceed- 
ings are to be taken on the bond or 

stipulation given 3 83 

dissolving attachment in suits in per- 
sonam 4 84 

when and how bail may be reduced 6 84 

new sureties may be required on bail 

bond 6 84 

amount for which warrant of arrest may 

issue 7 85 

suitsfor pilotage, against whom brought. 14 86 

against master or owner for damages by 

collision, how prosecuted 15 86 



17 


87 


18 


87 


19 


87 



INDEX TO ADMIRALTY RULES. 2B 

Rule. Page. 
Suits in personam, suits for assault or beating on the high 

seas in personam only 16 87 

how brought when founded upon a mere 
maritime hypothecation of master for 
moneys in a foreign port for supplies, 

repairs, etc 

provisions in suits on bottomry bonds.. 

suits for salvage, how prosecuted 

provisions for stipulation on part of the 

defendant's sureties 25 89 

when bail is to be taken by marshal 

where simple warrant of arrest issues. . 47 95 
imprisonment for debt abolished in cer- 
tain cases 47 95 

answer not to be verified where amount 

in dispute does not exceed |50 48 95 

provisions as to proceedings by claimant 

of vessel or respondent proceeded 

against in personam against any other 

vessel contributing to same collision. . 

Suits in rem, proceedings when tackle, sails, apparel, etc., 

are in possession or custody of third person. . 

nature of process, and how served, and by 

whom 

proceedings when ship is arrested in suits in 

rem 

in suits against master or owner, 

by material men 

for mariners' wages 

against ship, etc., for pilotage 

for damages by collision, how prosecuted 

how brought when founded upon a mere 
maritime hypothecation of moneys in a for- 
eign port for supplies, repairs, etc 

provisions for suits on bottomry bonds 

for salvage, how prosecuted 

how party claiming property shall verify 

claim 

third party is permitted to intervene 

provisions where freight or other proceeds 
attached are in the hands or possession of 

any party 

answer not to be verified where amount in 

dispute does not exceed |50 

Supplies, suits founded on hypothecation of master for 
moneys taken up in foreign port for supplies, etc., how 
prosecuted 17 87 



59 


101 


8 


85 


9 


85 


11 


86 


12 


86 


13 


86 


14 


86 


15 


86 


17 


87 


18 


87 


19 


87 


26 


89 


34 


92 


38 


93 


48 


95 



24 INDEX TO ADMIRALTY RULES. 

Rule. Page. 
Sureties, provisions for stipulation by defendant with sure- 
ties in case of libel m personam. 25 89 

on a stipulation to be given by intervenor in 

suits m rem 34 92 

Surplusage, provisions for exceptions to libel, etc., for -36 92 

Time for taking appeal from district to circuit courts 45 94 

rehearing after decree entered against defendant 

fordefault 40 93 

amending libel where answer alleges new facts 51 96 

United States, contents of informations and libels of infor- 
mation upon seizures for any breach of the revenue, navi- 
gation, or other laws of the United States 22 88 

Wages {see Mariners' wages) 13-38 86-93 

Warrant {see Arrest and attachment) 7-9 85 

Writ of execution {see Execution) 3-4-21 83- 

84-88 



i 



RULES OF THE SUPREME COURT OF 
THE UNITED STATES. 



CLERK. 



1. The clerk of this court shall reside and keep the office 
at the seat of the National Government, and he shall not 
practice, either as attorney or counsellor, in this court, or in 
any other court, while he shall continue to be clerk of this 
court. 

2. The clerk shall not permit any original record or paper 
to be taken from the court room, or from the office, without 
an order from the court, except as provided by Rule 10. 



ATTORNEYS AND COUNSELLORS. 

1. It shall be requisite to the admission of attorneys or 
counsellors to practice in this court, that they shall have 
been such for three years past in the supreme courts of the 
States to which they respectively belong, and that their pri- 
vate and professional character shall appear to be fair. 

2. They shall respectively take and subscribe the follow- 
ing oath or affirmation, viz : 

I, , do solemnly swear [or affirm] that I will de- 
mean myself, as an attorney and counsellor of this court, 
uprightly, and according to law; and that I will support the 
Constitution of the United States. 



PRACTICE. 

This court considers the former practice of the courts of 
king's bench and of chancery, in England, as affording out- 
lines for the practice of this court; and will, from time to 
time, make such alterations therein as circumstances may 

render necessary. 

25 



26 RULES OF THE SUPREME COURT. 

4. 
BILL OF EXCEPTIONS. 

The judges of the circuit and district courts shall not allow 
any bill of exceptions which shall contain the charge of the 
court at large to the jury in trials at common law, upon any 
general exception to the whole of such charge. . But the 
party excepting shall be required to state distinctly the sev- 
eral matters of law in such charge to which he excepts; and 
those matters of law, and those only, shall be inserted in 
the bill of exceptions and allowed by the court. 



PROCESS. 

1. All process of this court shall be in the name of the 
President of the United States, and shall contain the Chris- 
tian names, as well as the surnames, of the parties. 

2. When process at common law or in equity shall issue 
against a State, the same shall be served on the governor, or 
chief executive magistrate, and attorney-general of such 
State. 

3. Process of subpoena, issuing out of this court, in any 
suit in equity, shall be served on the defendant sixty days 
before the return day of the said process; and if the defend- 
ant, on such service of the subpoena, shall not appear at the 
return day, the complainant shall be at liberty to proceed ex 
parte. 

6. 

MOTIONS. 

1. All motions to the court shall be reduced to writing, 
and shall contain a brief statement of the facts and objects 
of the motion. 

2. One hour on each side shall be allowed to the argu- 
ment of a motion, and no more, without special leave of 
the court, granted before the argument begins. 

3. No motion to dismiss, except on special assignment by 
the court, shall be heard, unless previous notice has been 
given to the adverse party, or the counsel or attorney of 
such party. 



RULES OF THE SUPREME COURT. 27 

4. All motions to dismiss ^v^its of error and appeals, ex- 
cept motions to docket and dismiss under Rule 9, must be 
submitted in the first instance on printed briefs or argu- 
ments. If the court desires further argument on that sub- 
ject, it will be ordered in connection with the hearing on 
the merits. The party moving to dismiss shall serve notice 
of the motion, with a copy of his brief of argument, on the 
counsel for plaintiff in error or appellant of record in this 
court, at least three weeks before the time fixed for submit- 
ting the motion, in all cases except where the counsel to be 
notified resides west of the Rocky Mountains, in which case 
the notice shall be at least thirty days. Affidavits of the 
deposit in the mail of the notice and brief to the proper 
address of the counsel to be served, duly post-paid, at such 
time as to reach him by due course of mail, the three weeks 
or thirty days before the time fixed by the notice, will be 
regarded as frima facie evidence of service on counsel who 
reside without the District of Columbia. On proof of such 
service, the motion will be considered, unless, for satisfactory 
reasons, further time be given by the court to either party. 

5. There may be united with a motion to dismiss a writ 
of error or an appeal, a motion to aflirm on the ground that, 
although the record may show that this court has jurisdic- 
tion, it is manifest the writ or appeal was taken for delay 
only, or that the question on which the jurisdiction depends 
is so frivolous as not to need further argument. 

6. The court will not hear arguments on Saturday (unless 
for special cause it shall order to the contrary), but will 
devote that day to the other business of the court. The 
motion day shall be Monday of each week; and motions not 
required by the rules of the court to be put on the docket 
shall be entitled to preference immediately after the reading 
of opinions, if such motions shall be made before the court 
shall have entered upon the hearing of a case upon the 

docket. 

7. 

LAW LIBRAKY. 

1. During the session of the court, any gentleman of the 
bar having a case on the docket, and wishing to use any book 
or books in the law library, shall be at liberty, upon applica- 
tion to the clerk of the court, to receive an order to take the 



28 RULES OF THE SUPREME COURT. 

same (not exceeding at any one time three) from the library, 
he being thereby responsible for the due return of the same 
within a reasonable time, or when required by the clerk. It 
shall be the duty of the clerk to keep, in a book for that pur- 
pose, a record of all books so delivered, which are to be 
charged against the party receiving the same. And in case 
the same shall not be so returned, the party receiving the 
same shall be responsible for and forfeit and pay twice the 
value thereof, and also one dollar per day for each day's 
detention beyond the limited time. 

2. The clerk shall deposit in the law library, to be there 
carefully preserved, one copy of the printed record in every 
case submitted to the court for its consideration, and of all 
printed motions, briefs, or arguments filed therein. 

3. The marshal shall take charge of the books of the court, 
together with such of the duplicate law books as Congress 
may direct to be transferred to the court, and arrange them 
in the conference room, which he shall have fitted up in a 
proper manner; and he shall not permit such books to be 
taken therefrom by any one except the justices of the court. 



WRIT OF ERROR, RETURN AND RECORD. 

1. The clerk of the court to which any writ of error may 
be directed shall make return of the same, by transmitting 
a true copy of the record, and of the assignment of errors, and 
of all proceedings in the case, under his hand and the seal of 
the court. 

2. In all cases brought to this court, by writ of error or 
appeal, to review any judgment or decree, the clerk of the 
court by which such judgment or decree was rendered shall 
annex to and transmit with the record a copy of the opinion 
or opinions filed in the case. 

3. No case will be heard until a complete record, containing 
in itself, and not by reference, all the papers, exhibits, deposi- 
tions, and other proceedings which are necessary to the hear- 
ing in this court, shall be filed. 

4. Whenever it shall be necessary or proper, in the opinion 
of the presiding judge in any circuit court, or district court 
exercising circuit-court jurisdiction, that original papers of 



EULES OF THE SUPREME COUKT. 29 

any kind should be inspected in this court upon writ of error 
or appeal, such presiding judge may make such rule or 
order for the safe-keeping, transporting, and return of such 
original papers as to him may seem proper, and this court 
will receive and consider such original papers in connection 
with the transcript of the proceedings. 

5. All appeals, writs of error, and citations must be raade 
returnable not exceeding thirty days from the day of signing 
the citation, whether the return day fall in vacation or in 
term time, and be served before the return day. 

6. The record in cases of admiralty and maritime jurisdic- 
tion, when under the requirements of law the facts have been 
found in the court below, and the power of review is limited 
to the determination of questions of law arising on the record, 
shall be confined to the pleadings, the findings of fact, and 
conclusions of law thereon, the bills of exceptions, the final 
judgment or decree, and such interlocutory orders and decrees 
as may be necessary to a proper review of the case. 



DOCKETING CASES. 

1. It shall be the duty of the plaintiff in error or appellant 
to docket the case and file the record thereof with the clerk of 
this court by or before the return day, whether in vacation 
or in term time. But, for good cause shown, the justice or 
judge who signed the citation, or any justice of this court, 
may enlarge the time, by or before its expiration, the order 
of enlargement to be filed with the clerk of this court. If the 
plaintiff in error or appellant shall fail to comply with this 
rule, the defendant in error or appellee may have the cause 
docketed and dismissed upon producing a certificate, whether 
in term time or vacation, from the clerk of the court wherein 
the judgment or decree was rendered, stating the case and 
certifying that such writ of error or appeal has been duly sued 
out or allowed. And in no case shall the plaintiff in error 
or appellant be entitled to docket the case and file the record 
after the same shall have been docketed and dismissed under 
this rule, unless by order of the court. 

2. But the defendant in error or appellee may, at his 
option, docket the case and file a copy of the record with the 



30 RULES OF THE SUPREME COURT. 

clerk of this court; and if the case is docketed and a copy 
of the record filed with the clerk of this court by the plaintiff 
in error or appellant within the period of time above Hmited 
and prescribed by this rule, or by the defendant in error or 
appellee at any time thereafter, the case shall stand for 
argument. 

3. Upon the filing of the transcript of a record brought up 
by writ of error or appeal, the appearance of the counsel for 
the party docketing the case shall be entered. 

4. In all cases where the period of thirty days is mentioned 
in Kule 8, it shall be extended to sixty days in writs of error 
and appeals from Cahfornia, Oregon, Nevada, Washington, 
New Mexico, Utah, Arizona, Montana, Wyoming, North 
Dakota, South Dakota, Alaska, Idaho, Hawaii and Porto 
Rico, and to one hundred and twenty days from the Philippine 
Islands. 

10. 

PRINTING RECORDS. 

1 . In all cases the plaintiff in error or appellant, on docket- 
ing a case and filing the record, shall enter into an undertaking 
to the clerk, with surety to his satisfaction, for the payment of 
his fees, or otherwise satisfy him in that behalf. 

2. The clerk shall cause an estimate to be made of the cost 
of printing the record, and of his fee for preparing it for the 
printer and supervising the printing, and shall notify to the 
party docketing the case the amount of the estimate. If he 
shall not pay it within a reasonable time, the clerk shall notify 
the adverse party, and he may pay it. If neither party shall 
pay it, and for want of such payment the record shall not 
have been printed when a case is reached in the regular call 
of the docket, after March 1, 1884, the case shall be dismissed. 

3. Upon payment by either party of the amount estimated 
by the clerk, twenty-five copies of the record shall be printed, 
under his supervision, for the use of the court and of counsel. 

4. In cases of appellate jurisdiction the original transcript 
on file shall be taken by the clerk to the printer. But the 
clerk shall cause copies to be made for the printer of such 
original papers, sent up under Rule 8, section 4, as are neces- 
sary to be printed; and of the whole record in cases of original 
jurisdiction. 



RULES OF THE SUPREME COURT. 31 

5. The clerk shall supervise the printing, and see that the 
printed copy is properly indexed. He shall distribute the 
printed copies to the justices and the reporter, from time to 
time, as required, and a copy to the counsel for the respective 
parties. 

6. If the actual cost of printing the record, together with 
the fee of the clerk, shall be less than the amount estimated 
and paid, the amount of the difference shall be refunded by 
the clerk to the party paying it. If the actual cost and clerk's 
fee shall exceed the estimate, the amount of the excess shall 
be paid to the clerk before the delivery of a printed copy to 
either party or his counsel. 

7. In case of reversal, affirmance, or dismissal, with costs, 
the amount of the cost of printing the record and of the clerk's 
fee shall be taxed against the party against whom costs are 
given, and shall be inserted in the body of the mandate or 
other proper process. 

8. Upon the clerk's producing satisfactory evidence, by 
aflS-davit or the acknowledgment of the parties or their sure- 
ties, of having served a copy of the bill of fees due by them, 
respectively, in this court, on such parties or their sureties, 
an attachment shall issue against such parties or sureties, 
respectively, to compel payment of said fees. 

9. The plaintiff in error or appellant may, within ninety days 
after filing the record in this court, file with the clerk a state- 
ment of the errors on which he intends to rely, and of the 
parts of the record which he thinks necessary for the considera- 
tion thereof, and forthwith serve on the adverse party a copy 
of such statement. The adverse party, within ninety days 
thereafter, may designate in writing, filed with the clerk, 
additional parts of the record which he thinks material; and, 
if he shall not do so, he shall be held to have consented to a 
hearing on the parts designated by the plaintiff in error or 
appellant. If parts of the record shall be so designated by 
one or both of the parties, the clerk shall print those parts 
only; and the court will consider nothing but those parts of 
the record, and the errors so stated. If at the hearing it shall 
appear that any material part of the record has not been 
printed, the writ of error or appeal may be dismissed, or such 
other order made as the circumstances may appear to the court 
to require. If the defendant in error or appellee shall have 



32 RULES OF THE SUPREME COURT. 

caused unnecessary parts of the record to be printed, such 
order as to costs may be made as the court shall think proper. 
The fees of the clerk under Kule 24, section 7, shall be com- 
puted, as at present, on the folios in the record as filed, and 
shall be in full for the performance of his duties in the execu- 
tion hereof. 

11. 

TRANSLATIONS. 

Whenever any record transmitted to this court upon a writ 
of error or appeal shall contain any document, paper, testi- 
mony, or other proceedings in a foreign language, and the 
record does not also contain a translation of such document, 
paper, testimony, or other proceeding, made under the 
authority of the inferior court, or admitted to be correct, the 
record shall not be printed; but the case shall be reported to 
this court by the clerk, and the court will thereupon remand 
it to the inferior court, in order that a translation may be 
there supplied and inserted in the record. 

12. 
FURTHER PROOF. 

1. In all cases where further proof is ordered by the court, 
the depositions which may be taken shall be by a commission, 
to be issued from this court, or from any circuit court of the 
United States. 

2. In all cases of admiralty and maritime jurisdiction, 
where new evidence shall be admissible in this court, the 
evidence by testimony of witnesses shall be taken under a 
coiomission to be issued from this court, or from any circuit 
court of the United States, under the cUrection of any judge 
thereof; and no such commission shall issue but upon interrog- 
atories, to be filed by the party applying for the commission, 
and notice to the opposite party or his agent or attorney, 
accompanied with a copy of the interrogatories so filed, to 
file cross-interrogatories within twenty days from the service 
of such notice: Provided, however, That nothing in this rule 
shall prevent any party from giving oral testimony in open 
court in cases where by lav/ it is admissible. 



RULES OF THE SUPREME COURT. 3 '3 

13. 
OBJECTIONS TO EVIDENCE IN THE RECORD. 

In all cases of equity or admiralty jurisdiction, heard in 
this court, no objection shall hereafter be allowed to be 
taken to the admissibility of any deposition, deed, grant, or 
other exhibit found in the record as evidence, unless objection 
was taken thereto in the court below and entered of record; 
but the same shall otherwise be deemed to have been 
admitted by consent. 

14. 

CERTIORARI. 

No certiorari for diminution of the record will be hereafter 
awarded in any case, unless a motion therefor shall be made 
in writing, and the facts on which the same is foimded shall, 
if not admitted by the other party, be verified by affidavit. 
And all motions for certiorari must be made at the first term 
of the entry of the case ; otherwise, the same will not be granted, 
unless upon special cause shown to the court, accounting 
satisfactorily for the delay. 

15. 

DEATH OF A PARTY. 

1. Whenever, pending a writ of error or appeal in this court, 
either party shall die, the proper representatives in the 
personalty or realty of the deceased party, according to the 
nature of the case, may voluntarily come in and be admitted 
parties to the suit, and thereupon the case shall be heard 
and determined as in other cases; and if such representatives 
shall not voluntarily become parties, then the other party 
may suggest the death on the record, and thereupon, on 
motion, obtain an order that unless such representatives 
shall become parties within the first ten days of the ensuing 
term, the party moving for such order, if defendant in error, 
shall be entitled to have the writ of error or appeal dismissed ; 
and if the party so moving shall be plaintiff in error, he shall 
be entitled to open the record, and on hearing have the 
judgment or decree reversed, if it be erroneous: Provided, 
however. That a copy of every such order shall be printed 

10873—07 3 



34 RULES OF THE SUPREME COURT. 

in some newspaper of general circulation within the State, 
Territory, or District from which the case is brought, for 
three successive weeks, at least sixty days before the begin- 
ning of the term of the Supreme Court then next ensmng. 

2. Wlien the death of a party is suggested, and the repre- 
sentatives of the deceased do not appear by the tenth day 
of the second term next succeeding the suggestion, and no 
measures are taken by the opposite party within that time 
to compel their appearance, the case shall abate. 

3. When either party to a suit in a circuit court of the 
United States shall desire to prosecute a writ of error or 
appeal to the Supreme Court of the United States, from any 
final judgment or decree, rendered in the circuit court, and 
at the time of suing out such writ of error or appeal the other 
party to the suit shall be dead and have no proper representa- 
tive within the jurisdiction of the court which rendered such 
final judgment or decree, so that the suit can not be revived 
in that court, but shall have a proper representative in some 
State or Territory of the United States, the party desiring 
such writ of error or appeal may procure the same, and may 
have proceedings on such judgment or decree superseded or 
stayed in the same manner as is now allowed by law in other 
cases, and shall thereupon proceed with such writ of error or 
appeal as in other cases. And within thirty days after the 
commencement of the term to which such writ of error or 
appeal is returnable, the plaintiff in error or appellant shall 
make a suggestion to the court, supported by affidavit, that 
the said party was dead when the writ of error or appeal was 
taken or sued out, and had no proper representative within 
the jurisdiction of the court which rendered said judgment 
or decree, so that the suit could not be revived in that court, 
and that said party had a proper representative in some 
State or Territory of the United States, and stating therein 
the name and character of such representative, and the State 
or Territory in which such representative resides; and, upon 
such suggestion, he may, on motion, obtain an order that, 
unless such representative shall make himself a party within 
the first ten days of the ensuing term of the court, the plain- 
tiff in error or appellant shall be entitled to open the record, 
and, on hearing, have the judgment or decree reversed, if the 
same be erroneous: Provided, however, That a proper cita- 
tion reciting the substance of such order shall be served upon 



RULES OF THE SUPREME COURT. 35 

such representative, either personally or by being left at his 
residence, at least sixty days before the beginning of the term 
of the Supreme Court then next ensuing: And provided, also, 
That in every such case if the representative of the deceased 
party does not appear by the tenth day of the term next suc- 
ceeding said suggestion, and the measures above provided to 
compel the appearance of such representative have not been 
taken within time as above required, by the opposite party, 
the case shall abate: And provided, also, That the said 
representative may at any time before or after said sugges- 
tion come in and be made a party to the suit, and thereupon 
the case shall proceed, and be heard and determined as in 

other cases. 

16. 

NO APPEARANCE OF PLAINTIFF. 

Where no counsel appears and no brief has been filed for 
the plaintiff in error or appellant, when the case is called for 
trial, the defendant may have the plaintiff called and the 
writ of error or appeal dismissed, or may open the record 
and pray for an affirmance. 

17. 

NO APPEARANCE OF DEFENDANT. 

Where the defendant fails to appear when the case is called 

for trial, the court may proceed to hear an argument on the 

part of the plaintiff and to give judgment accordiag to the 

right of the case. 

18. 

NO APPEARANCE OF EITHER PARTY. 

When a case is reached in the regular call of the docket, 
and there is no appearance for either party, the case shall be 
dismissed at the cost of the plaintiff. 

19. 

NEITHER PARTY READY AT SECOND TERM. 

When a case is called for argument at two successive terms, 
and upon the call at the second term neither party is pre- 
pared to argue it, it shall be dismissed at the cost of the plain- 
tiff, unless sufficient cause is shown for further postponement. 



36 RULES OF THE SUPREME COURT. 

20. 
PRINTED ARGUMENTS. 

1. In all cases brought here on writ of error, appeal, or 
otherwise, the court will receive printed arguments without 
regard to the number of the case on the docket, if the counsel 
on both sides shall choose to submit the same within the first 
ninety days of the term; and, in addition, appeals from the 
Court of Claims may be submitted by both parties within 
thirty days after they are docketed, but not after the first day 
of April; but twenty-five copies of the argiunents, signed by 
attorneys or counsellors of this court, must be first filed. 

2. When a case is reached in the regular call of the docket, 
and a printed argument shall be filed for one or both parties, 
the case shall stand on the same footing as if there were an 
appearance by counsel. 

3. When a case is taken up for trial upon the regular call of 
the docket, and argued orally in behalf of only one of the par- 
ties, no printed argument for the opposite party will be re- 
ceived, unless it is filed before the oral argument begins, and 
the court will proceed to consider and decide the case upon 
the ex 'parte argument. 

4. No brief or argument will be received, either through 
the clerk or otherwise, after a case has been argued or sub- 
mitted, except upon leave granted in open court after notice 
to opposing coimsel. 

21. 

BRIEFS. 

1. The counsel for plaintiff in error or appellant shall file 
with the clerk of the court, at least six days before the case 
is called for argument, twenty-five copies of a printed brief, 
one of which shall, on application, be furnished to each of the 
counsel engaged upon the opposite side. 

2. This brief shall contain, in the order here stated — 

(1) A concise abstract, or statement of the case, presenting 
succinctly the questions involved and the manner in which 
they are raised. 

(2) A specification of the errors relied upon, which, in 
cases brought up by writ of error, shall set out separately 



KDLES OF THE SUPREME COUET. 37 

and particularly each error asserted and intended to be 
urged; and in cases brought up by appeal the specification 
shall state, as particularly as may be, in what the decree is 
alleged to be erroneous. When the error alleged is to the 
admission or to the rejection of evidence, the specification 
shall quote the full substance of the evidence admitted or 
rejected. When the error alleged is to the charge of the 
court, the specification shall set out the part referred to 
totidem verbis, whether it be instructions given or instruc- 
tions refused. When the error alleged is to a ruling upon 
the report of a master, the specification shall state the excep- 
tion to the report and the action of the court upon it. 

(3) A brief of the argument, exhibiting a clear statement 
of the points of law or fact to be discussed, with a reference 
to the pages of the record and the authorities relied upon in 
support of each point. When a statute of a State is cited, so 
much thereof as may be deemed necessary to the decision of 
the case shall be printed at length. 

3. The counsel for a defendant in error or an appellee shall 
file with the clerk twenty-five printed copies of his argument, 
at least three days before the case is called for hearing. His 
brief shall be of like character with that required of the 
plaintiff in error or appellant, except that no specification of 
errors shall be required, and no statement of the case, unless 
that presented by the plaintiff in error or appellant is 
controverted. 

4. When there is no assignment of errors, as required by 
section 997 of the Revised Statutes, counsel will not be heard, 
except at the request of the court; and errors not specified 
according to this rule will be disregarded; but the court, at 
its option, may notice a plain error not assigned or specified. 

5. When, according to this rule, a plaintiff in error or an 
appellant is in default, the case may be dismissed on motion; 
and when a defendant in error or an appellee is in default, he 
will not be heard, except on consent of his adversary, and by 
request of the court. 

6. When no oral argument is made for one of the parties, 
only one counsel will be heard for the adverse party. 



88 RULES OF THE SUPREME COURT. 

22. 
ORAL ARGUMENTS. 

1. The plaintiff or appellant in this court shall be entitled 
to open and conclude the argument of the case. But when 
there are cross-appeals they shall be argued together as one 
case, and the plaintiff in the court below shall be entitled to 
open and conclude the argument. 

2. Only two counsel will be heard for each party on the 
argument of a case. 

3. Two hoius on each side will be allowed for the argu- 
ment, and no more, without special leave of the court, 
granted before the argument begins. The time thus allowed 
may be apportioned between the counsel on the same side, 
at their discretion: Provided, always. That a fair opening 
of the case shall be made by the party having the opening 
and closing arguments. 

23. 

INTEREST. 

1 . In cases where a writ of error is prosecuted to this court, 
and the judgment of the inferior court is affirmed, the inter- 
est shall be calculated and levied, from the date of the judg- 
ment below until the same is paid, at the same rate that 
similar judgments bear interest in the courts of the State 
where such judgment is rendered. 

2. In all cases where a writ of error shall delay the pro- 
ceedings on the judgment of the inferior court, and shall 
appear to have been sued out merely for delay, damages at 
a rate not exceeding 10 per cent., in addition to interest, shall 
be awarded upon the amount of the judgment. 

3. The same rule shall be applied to decrees for the pay- 
ment of money in cases in equity, unless otherwise ordered 
by this court. 

4. In cases in admiralty, damages and interest may be 
allowed if specially directed by the court. 



RULES OF THE SUPREME COURT. 39 

COSTS. 

1. In all cases where any suit shall be dismissed in this 
court, except where the dismissal shall be for want of juris- 
diction, costs shall be allowed to the defendant in error or 
appellee, unless otherwise agreed by the parties. 

2. In all cases of affirmance of any judgment or decree in 
this court, costs shall be allowed to the defendant in error 
or appellee, unless otherwise ordered by the court. 

3. In cases of reversal of any judgment or decree in this 
court, costs shall be allowed to the plaintiff in error or appel- 
lant, unless otherwise ordered by the court. The cost of the 
transcript of the record from the court below shall be a part 
of such costs, and be taxable in that court as costs in the 
case. 

4. Neither of the foregoing sections shall apply to cases 
where the United States are a party; but in such cases no 
costs shall be allowed in this court for or against the United 
States. 

5. In all cases of the dismissal of any suit in this court, it 
shall be the duty of the clerk to issue a mandate, or other 
proper process, in the nature of a procedendo, to the court 
below, for the purpose of informing such court of the pro- 
ceedings in this court, so that further proceedings may be 
had in such court as to law and justice may appertain. 

6. When costs are allowed in this court, it shall be the 
duty of the clerk to insert the amount thereof in the body 
of the mandate, or other proper process, sent to the court 
below, and annex to the same the bill of items taxed in detail. 

7. In pursuance of the act of March 3, 1883, authorizing 
and empowering this court to prepare a table of fees to be 
charged by the clerk of this court, the following table is 
adopted: 

For docketing a case and filing and indorsing the tran- 
script of the record, five dollars. 

For entering an appearance, twenty-five cents. 

For entering a continuance, twenty -five cents. 

For filing a motion, order, or other paper, twenty-five 
cents. 



40 RULES OF THE SUPREME COURT. 

For entering any rule, or for making or copying any record 
or other paper, twenty cents per folio of each one hundred 
words. 

For transferring each case to a subsequent docket and 
indexing the same, one dollar. 

For entering a judgment or decree, one dollar. 

For every search of the records of the court, one dollar. 

For a certificate and seal, two dollars. 

For receiving, keeping, and paying money in pursuance of 
any statute or order of court, two per cent, on the amount 
so received, kept, and paid. 

For an admission to the bar and certificate under seal, ten 
dollars. 

For preparing the record or a transcript thereof for the 
printer, indexing the same, supervising the printing and dis- 
tributing the printed copies to the justices, the reporter, the 
law library, and the parties or their counsel, fifteen cents 
per folio. 

For making a manuscript copy of the record, when re- 
quired under Rule 10, twenty cents per folio, but nothing in 
addition for supervising the printing. 

For issuing a writ of error and accompanying papers, ^ve 
dollars. 

For a mandate or other process, ^ve dollars. 

For filing briefs, -^ve dollars for each party appearing. 

For every copy of any opinion of the court or any justice 
thereof, certified under seal, one dollar for every printed page, 
but not to exceed -^yb dollars in the whole for any copy. 

25. 

OPINIONS OF THE COURT. 

1. All opinions delivered by the court shall, immediately 
upon the delivery thereof, be handed to the clerk to be re- 
corded. And it shall be the duty of the clerk to cause the 
same to be forthwith recorded, and to deliver a copy to the 
reporter as soon as the same shall be recorded. 

2. The original opinions of the court shall be filed with the 
clerk of this court for preservation. 

3. Opinions printed under the supervision of the justices 
delivering the same need not be copied by the clerk into a 



RULES OF THE SUPREME COURT. 41 

book of records; but at the end of each term the clerk shall 
cause such printed opinions to be bound in a substantial man- 
ner into one or more volumes, and when so bound they shall 
be deemed to have been recorded within the meaning of this 

rule. 

26. 

CALL AND ORDER OF THE DOCKET. 

1. The court, on the second day in each term, will com- 
mence calling the cases for argument in the order in which 
they stand on the docket, and proceed from day to day dur- 
ing the term in the same order (except as hereinafter pro- 
vided) ; and if the parties, or either of them, shall be ready 
when the case is called, the same will be heard ; and if neither 
party shall be ready to proceed in the argument, the case 
shall go down to the foot of the docket, unless some good and 
satisfactory reason to the contrary shall be shown to the 
court. 

2. Ten cases only shall be considered as liable to be called 
on each day during the term. But on the coming in of the 
court on each day the entire number of such ten cases \7ill be 
called, with a view to the disposition of such of them as are 
not to be argued. 

3. Criminal cases may be advanced by leave of the court 
on motion of either party. 

4. Cases once adjudicated by this court upon the merits, 
and again brought up by writ of error or appeal, may be ad- 
vanced by leave of the court on motion of either party. 

5. Revenue and other cases in which the United States are 
concerned, which also involve or affect some matter of general 
public interest, may also by leave of the court be advanced on 
motion of the Attorney-General. 

6. All motions to advance cases must be printed, and must 
contain a brief statement of the matter involved, with the 
reasons for the application. 

7. No other case will be taken up out of the order on the 
docket, or be set down for any particular day, except under 
special and peculiar circumstances to be shown to the court. 
Every case which shall hav^ been called in its order and 
passed and put at the foot of the docket shall, if not again 
reached during the term it was called, be continued to the 
next term of the court. 



42 RULES OF THE SUPREME COURT. 

8. Two or more cases, involving the same question, may. 
by the leave of the com-t, be heard together, but they must 
be argued as one case. 

9. If, after a case has been passed under circumstances 
which do not place it at the foot of the docket, the parties- 
shall desire to have it heard, they may file with the clerk their 
joint request to that effect, and the case shall then be by him 
reinstated for call ten cases after that under argument, or 
next to be called at the end of the day the request is filed. If 
the parties will not unite in such a request, either may move 
to take up the case, and it shall then be assigned to such place 
upon the docket as the court may direct. 

10. No stipulation to pass a case without placing it at the 
foot of the docket will be recognized as binding upon the 
court. A case can only be so passed upon application made 
and leave granted in open court. 

27. 

ADJOURNMENT. 

The court will, at every term, annoimce on what day it will 
adjourn at least ten days before the time which shall be fixed 
upon, and the court will take up no case for argument, nor 
receive any case upon printed briefs, within three days next 
before the day fixed upon for adjournment. 

28. 
DISMISSING CASES IN VACATION. 

Whenever the plaintiff and defendant in a writ of error 
pending in this court, or the appellant and appellee in an 
appeal, shall in vacation, by their attorneys of record, sign 
and file with the clerk an agreement in writing directing the 
case to be dismissed, and specifying the terms on which it is 
to be dismissed as to costs, and shall pay to the clerk any 
fees that may be due to him, it shall be the duty of the clerk 
to enter the case dismissed, and to give to either party 
requesting it a copy of the agreement filed ; but no mandate 
or other process shall issue without an order of the court. 



RULES OF THE SUPREME COURT. 4S 

29. 
SUPERSEDEAS. 

Supersedeas bonds in the circuit courts must be taken, with 
good and sufficient security, that the plaintiff in error or ap- 
pellant shall prosecute his writ or appeal to effect, and answer 
all damages and costs if he fail to make his plea good. Such 
indemnity, where the judgment or decree is for the recovery 
of money not otherwise secured, must be for the whole 
amount of the judgment or decree, including just damages 
for delay, and costs and interest on the appeal; but in all 
suits where the property in controversy necessarily follows 
the event of the suit, as in real actions, replevin, and in suits 
on mortgages, or where the property is in the custody of the 
marshal under admiralty process, as in case of capture or 
seizure, or where the proceeds thereof, or a bond for the value 
thereof, is in the custody or control of the court, indemnity 
in all such cases is only required in an amount sufficient to 
secure the sum recovered for the use and detention of the 
property, and the costs of the suit, and just damages for 
delay, and costs and interest on the appeal. 

30. 

REHEARING. 

A petition for rehearing after judgment can be presented 
only at the term at which judgment is entered, unless by 
special leave granted during the term ; and must be printed 
and briefly and distinctly state its grounds, and be supported 
by certificate of counsel ; and will not be granted, or permitted 
to be argued, unless a justice who concurred in the judgment 
desires it, and a majority of the court so determines. 

31. 

FORM OF PRINTED RECORDS AND BRIEFS. 

All records, arguments, and briefs, printed for the use of 
the court, must be in such form and size that they can be con- 
veniently boimd together, so as to make an ordinary octavo 
volume; and, as well as all quotations contained therein, and 
the covers thereof, must be printed in clear type (never 
smaller than small pica) and on unglazed paper. 



44 RULES OB^ THE SUPREME COURT. 

32. 
WRITS OF ERROR AND APPEALS UNDER THE ACT OF FEBRUARY 

25, 1889, CHAPTER 236, or under section 5 of the act 

OF MARCH 3, 1891, CHAPTER 517. 

Cases brought to this court by writ of error or appeal, under 
the act of February 25, 1889, chapter 236, or under section 5 
of the act of March 3, 1891, chapter 517, where the only ques- 
tion in issue is the question of the jurisdiction of the court 
below, will be advanced on motion, and heard under the rules 
prescribed by Rule 6, in regard to motions to dismiss writs of 
error and appeals. 

33. 

MODELS, DIAGRAMS, AND EXHIBITS OF MATERIALS. 

1. Models, diagrams, and exhibits of material forming part 
of the evidence taken in the court below, in any case pending 
in this court, on writ of error or appeal, shall be placed in the 
custody of the marshal of this court at least one month before 
the case is heard or submitted. 

2. All models, diagrams, and exhibits of material, placed in 
the custody of the marshal for the inspection of the court on 
the hearing of a case, must be taken away by the parties 
within one month after the case is decided. When this is 
not done, it shall be the duty of the marshal to notify the 
coimsel in the case, by mail or otherwise, of the requirements 
of this rule; and if the articles are not removed within a 
reasonable time after the notice is given, he shall destroy 
them, or make such other disposition of them as to him may 
seem best. 

34. 

CUSTODY OF PRISONERS ON HABEAS CORPUS. 

1. Pending an appeal from the final decision of any court 
or judge declining to grant the writ of habeas corpus, the 
custody of the prisoner shall not be disturbed. 

2. Pending an appeal from the final decision of any court 
or judge discharging the writ after it has been issued, the 
prisoner shall be remanded to the custody from which he 
was taken by the writ, or shall, for good cause shown, be 



RULES OF THE SUPREME COURT. 45 

detained in custody of the court or judge, or be enlarged 
upon recognizance as hereinafter provided. 

3. Pending an appeal from the final decision of any court 
or judge discharging the prisoner, he shall be enlarged upon 
recognizance, with surety, for appearance to answer the 
judgment of the appellate court, except where, for special 
reasons, sureties ought not to be required. 

35. 

ASSIGNMENT OF ERKORS. 

1. Where an appeal or a writ of error is taken from a dis- 
trict court or a circuit court direct to this court, under section 
5 of the act entitled ''An act to establish circuit courts of 
appeals and to define and regulate in certain cases the juris- 
diction of the courts of the United States, and for other 
purposes," approved March 3, 1891, the plaintiff in error or 
appellant shall file with the clerk of the court below, with his 
petition for the writ of error or appeal, an assignment of errors, 
which shall set out separately and particularly each error 
asserted and intended to be urged. No writ of error or 
appeal shall be allowed until such assignment of errors shall 
have been filed. When the error alleged is to the admission 
or to the rejection of evidence, the assignment of errors shall 
quote the full substance of the evidence admitted or rejected. 
When the error alleged is to the charge of the court, the 
assignment of errors shall set out the part referred to totidem 
verbis, whether it be in instructions given or in instructions 
refused. Such assignment of errors shall form part of the 
transcript of the record, and be printed with it. When this 
is not done counsel will not be heard, except at the request 
of the court; and errors not assigned according to this rule 
will be disregarded, but the court, at its option, may notice 
a plain error not assigned. 

2. The plaintiff in error or appellant shall cause the record 
to be printed, according to the provisions of sections 2, 3, 4, 
5, 6, and 9, of Rule 10, 



46 RULES OF THE SUPREME COURT. 

36. 
APPEALS AND WRITS OF ERROR. 

1. An appeal or a writ of error from a circuit couft or a 
district court direct to this court, in the cases provided for in 
sections 5 and 6 of the act entitled ''An act to establish cir- 
cuit courts of appeals, and to define and regulate in certain 
cases the jurisdiction of the courts of the United States, and 
for other purposes," approved March 3, 1891, may be allowed, 
in term time or in vacation, by any justice of this court, or by 
any circuit judge within his circuit, or by any district judge 
within his district, and the proper security be taken and the 
citation signed by him, and he may also grant a supersedeas 
and stay of execution or of proceedings, pending such writ 
of error or appeal. 

2. Where such writ of error is allowed in the case of a con- 
viction of an infamous crime, or in any other criminal case in 
which it will lie under said sections 5 and 6, the circuit court 
or district court, or any justice or judge thereof, shall have 
power, after the citation is served, to admit the accused to 
bail in such amoimt as may be fixed. 

37. 

CASES FROM CIRCUIT COURT OF APPEALS. 

1. Where, under section 6 of the said act, a Circuit Court of 
Appeals shall certify to this court a question or proposition of 
law, concerning which it desires the instruction of this court 
for its proper decision, the certificate shall contain a proper 
statement of the facts on which such question or proposition 
of law arises, 

2. If application is thereupon made to this court that the 
whole record and cause may be sent up to it for its considera- 
tion, the party making such application shall, as a part 
thereof, furnish this court with a certified copy of the whole 
of said record. 

3. Where application is made to this court under section 6 
of the said act to require a case to be certified to it for its 
review and determination, a certified copy of the entire 
record of the case in the circuit court of appeals shall be 
furnished to this court by the applicant, as part of the appli- 
cation. 



RULES OF THE SUPREME COURT 47 

38. 
INTEREST, COSTS, AND FEES. 

The provisions of Rules 23 and 24 of this court, in regard 
to interest and costs and fees, shall apply to writs of error 
:and appeals and reviews under the provisions of sections 5 
and 6 of the said act. 

39. 

MANDATES. 

Mandates shall issue as of course after the expiration of 
thirty days from the day the judgment or decree is entered, 
unless the time is enlarged by order of the court, or of a 
justice thereof when the court is not in session, but during 
the term. 



I"' 



ORDER IN REFERENCE TO APPEALS FROM THE 
COURT OP CLAIMS. 



REGULATION'S PRESCMIBED BY THE SUPREME COURT OF THE 
UNITED STATES UNDER. WHICH APPEAIS MAY BE TAKEW FItOM 
THE COURT OF CI AIMS TO SAID SUPREME COURT. 



Rule I. 

In all cases hereafter decided in the Court of Claims in 
which, by the act of Congress, such appeals are allowable, 
they shall be heard in the Supreme Court upon the following 
record, and none other: 

1. A transcript of the pleadings in the case, of the final 
judgment or decree of the court, and of such interlocutory 
orders, rulings, judgments, and decrees as may be necessary 
to a proper review of the case. 

2. A finding by the Court of Claims of the facts in the case 
established by the evidence in the nature of a special verdict, 
but not the evidence establishing them; and a separate 
statement of the conclusions of law upon said facts, upon 
which the court founds its judgment or decree. The finding 
of facts and conclusions of law to be certified to this court as 
a part of the record. 

Rule 2. 

In all cases in which judgments or decrees have heretofore 
been rendered, where either party is by law entitled to an 
appeal, the party desiring it shall make application to the 
Court of Claims by petition for the allowance of such appeal. 
Said petition shall contain a distinct specification of the 
errors alleged to halve been committed by said court in its 
rulings, judgment, or decree in the case. The court shall, if 
the specification of the alleged error be correctly and accu- 
rately stated, certify the same, or may certify such alterna- 
tions and modifications of the points decided and alleged for 
10873—07 4 49 



50 APPEALS FROM THE COURT OF CLAIMS. 

error as, in the judgment of said court, shall distinctly, 
fully, and fairly present the points decided by the court. 
This, with the transcript mentioned in Rule 1 (except the 
statement of facts and law therein mentioned), shall con- 
stitute the record on which those cases shall be heard in the 
Supreme Court. 

Rule 3, 

In all cases an order of allowance of appeal by the Court of 
Claims, or the chief-justice thereof in vacation, is essential, 
and the limitation of time for granting such appeal shall cease 
to run from the time an application is made for the allowance 
of appeal. 

Rule 4. 

In all cases in which either party is entitled to appeal to the 
Supreme Court, the Court of Claims shall make and file their 
finding of facts, and their conclusions of law therein, in open 
court, before or at the time they enter their judgment in the 
case. 

Rule 5. 

In every such case, each party, at such time before trial and 
in such form as the court may prescribe, shall submit to it a 
request to find all the facts which the party considers proven 
and deems material to the due presentation of the case in the 
finding of facts. 

October Term, 1882. 

Ordered, That Rule 1, in reference to appeals from the 
Court of Claims, be, and the same is hereby, made applicable 
to appeals in all cases heretofore or hereafter decided by that 
court under the jurisdiction conferred by the act of June 16, 
1880, c. 243, ''to provide for the settlement of all outstanding 
claims against the District of Columbia, and conferring juris- 
diction on the Court of Claims to hear the same, and for other 
purposes.'' 



RULES OP PRACTICE FOR THE COURTS OF 
EQUITY OF THE UNITED STATES. 



PRELIMINARY REGULATIONS. 
1. 

The circuit courts, as courts of equity, shall be deemed 
always open for the purpose of filing bills, answers, and other 
pleadings ; for issuing and returning mesne and final process 
and commissions; and for making and directing all interlocu- 
tory motions, orders, rules, and other proceedings, prepara- 
tory to hearing of all causes upon their merits. 

2. 

The clerk's office shall be open, and the clerk shall be in 
attendance therein, on the first Monday of every month, for 
the purpose of receiving, entering, entertaining, and disposing 
of all motions, rules, orders, and other proceedings, which are 
grantable of course and applied for, or had by the parties or 
their solicitors, in all causes pending in equity, in pursuance 
of the rules hereby prescribed. 



Any judge of the circuit court, as well in vacation as in 
term, may, at chambers, or on the rule-days at the clerk's 
office, make and direct all such interlocutory orders, rules, 
and other proceedings, preparatory to the hearing of all causes 
upon their merits in the same manner and with the same 
effect as the circuit court could make and direct the same in 
term, reasonable notice of the application therefor being 
first given to the adverse party, or his solicitor, to appear 
and show cause to the contrary, at the next rule-day there- 
after, unless some other time is assigned by the judge for the 

hearing. 

51 



52 EULES OF PRACTICE IN EQUITY. 



All motions, rules, orders, and other proceedings, made and 
directed at chambers, or on rule-days at the clerk's office, 
whether special or of course, shall be entered by the clerk in 
an order-book, to be kept at the clerk's office, on the day when 
they are made and directed; which book shall be open at all 
office hours to the free inspection of the parties in any suit in 
equity, and their solicitors. And, except in cases where 
personal or other notice is specially required or directed, such 
entry in the order-book shall be deemed sufficient notice to the 
parties and their solicitors, without further service thereof, 
of all orders, rules, acts, notices, and other proceedings 
entered in such order-book touching any and all the matters 
in the suits to and in which they are parties and solicitors. 
And notice to the solicitors shall be deemed notice to the 
parties from whom they appear and whom they represent, in 
all cases where personal notice on the parties is not otherwise 
specially required. Where the solicitors for all the parties 
in a suit reside in or near the same town or city the judges 
of the circuit court may, by rule, abridge the time for notice 
of rules, orders, or other proceedings not requiring personal 
service on the parties, in their discretion. 

5. 

All motions and applications in the clerk's office for the issu- 
ing of mesne process and final process to enforce and execute 
decrees ; for filing bills, answers, pleas, demurrers, and other 
pleadings ; for making amendments to bills and answers ; for 
tsikmg hills pro confesso; for filing exceptions; and for other 
proceedings in the clerk's office which do not, by the rules here- 
inafter prescribed, require any allowance or order of the 
court or of any judge thereof, shall be deemed motions and 
applications grantable of course by the clerk of the court. 
But the same may be suspended, or altered, or rescinded by 
any judge of the court, upon special cause shown. 

6. 

All motions for rules or orders and other proceedings, which 
are not grantable of course or vvdthout notice, shall, unless a 
different time be assigned by a judge of the court, be made 
on a rule-day, and entered in the order-book, and shall be 



KULES OF PRACTICE ITT EQUITY. 53 

heard at the rule-day next after that on which the motion is 
made. And if the adverse party, or his soHcitor, shall not 
then appear, or shall not show good cause against the same, 
the motion may be heard by any judge of the court ex parte, 
and granted, as if not objected to, or refused, in his discretion. 

PROCESS. 

T. 

The process of subpoena shall constitute the proper mesne 
process in all suits in equity, in the first instance, to require 
the defendant to appear and answer the exigency of the bill ; 
and, unless otherwise provided in these rules, or specially or- 
dered by the circuit court, a writ of attachment, and, if the 
defendant can not be found, a writ of sequestration, or a writ 
of assistance to enforce a delivery of possession, as the case 
may require, shall be the proper process to issue for the pur- 
pose of compelling obedience to any interlocutory or final 
order or decree of the court. 

8. 

Final process to execute any decree may, if the decree be 
solely for the payment of money, be by a writ of execution, in 
the form used in the circuit court in suits at common law in 
actions of assumpsit. If the decree be for the performance 
of any specific act, as, for example, for the execution of a 
conveyance of land or the delivering up of deeds or other 
documents, the decree shall, in all cases, prescribe the time 
within which the act shall be done, of which the defendant 
shall be bound, without further service, to take notice; and 
upon affidavit of the plaintiff, filed in the clerk's office, that 
the same has not been complied with within the prescribed 
time, the clerk shall issue a writ of attachment against the 
delinquent party, from which, if attached thereon, he shall 
not be discharged, unless upon a full compliance with the 
decree and the payment of all costs, or upon a special order 
of the court, or of a judge thereof, upon motion and affidavit, 
enlarging the time for the performance thereof. If the 
delinquent party can not be found, a writ of sequestration 
shall issue against his estate upon the return of non est 
inventus, to compel obedience to the decree. 



54 RULES OF PRACTICE IN EQUITY. 

9. 

When any decree or order is for the deHvery or possession,, 
upon proof made by affidavit of a demand and refusal to 
obey the decree or order, the party prosecuting the same 
shall be entitled to a writ of assistance from the clerk of the 
court. 

10. 

Every person, not being a party in any cause, who has 
obtained an order, or in whose favor an order shall have been 
made, shall be enabled to enforce obedience to such order by 
the same process as if he were a party to the cause; and 
every person, not being a party in any cause, against whom 
obedience to any order of the court may be enforced, shall 
be liable to the same process for enforcing obedience to such 
orders as if he were a party in the cause. 

SERVICE OF PROCESS. 

11. 

No process of subpoena shall issue from the clerk's office 
in any suit in equity until the bill is filed in the office. 

12. 

Whenever a bill is filed, the clerk shall issue the process of 
subpoena thereon, as of course, upon the application of the 
plaintiff, which shall contain the Christian names as well as 
the surnames of the parties, and shall be returnable into the 
clerk's office the next rule day, or the next rule day but one, 
at the election of the plaintiff, occurring after twentj^ days 
from the time of the issuing thereof. At the bottom of the 
subpoena shall be placed a memorandum, that the defendant 
is to enter his appearance in the suit in the clerk's office on 
or before the day at which the writ is returnable; otherwise 
the bill may be taken fro confesso. Where there are more 
than one defendant, a writ of subpoena may, at the election 
of the plaintiff, be sued out separately for each defendant, 
except in the case of husband and wife defendants, or a joint 
subpoena against all the defendants. 



BULES OF PKACTICE IN EQUITY. 55 

13. 

The service of all subpoenas shall be by a delivery of a copy 
thereof by the oJBGicer serving the same to the defendant per- 
sonally, or by leaving a copy thereof at the dweUing-house 
or usual place of abode of each defendant, with some adult 
person who is a member or resident in the family. 

14. 

Whenever any subpoena shall be returned not executed as 
to any defendant, the plaintiff shall be entitled to another 
subpoena, toties quoties, against such defendant, if he shall 
require it, until due service is made. 

15. 

The service of all process, mesne and final, shall be by the 
marshal of the district, or his deputy, or by some other per- 
son specially appointed by the court for that purpose, and 
not otherwise. In the latter case, the person serving the 
process shall make affidavit thereof. 

16. 

Upon the return of the subpoena as served and executed 
upon any defendant, the clerk shall enter the suit upon his 
docket as pending in the court, and shall state the time of 
the entry. 

APPEARANCE. 
17. 

The appearance-day of the defendant shall be the rule-day 
to which the subpoena is made returnable, provided he has 
been served with the process twenty days before that day; 
otherwise his appearance-day shall be the next rule-day suc- 
ceeding the rule-day when the process is returnable. 

The appearance of the defendant, either personally or by 
his solicitor, shall be entered in the order-book on the day 
thereof by the clerk. 



56 EULES OF PEACTICE IN EQUITY. 

BILLS TAKEN PRO CONFESSO. 
18. 

It shall be the duty of the defendant, unless the time shall 
be otherwise enlarged, for cause shown, by a judge of the 
court, upon motion for that purpose, to file his. plea, de- 
murrer, or answer to the bill, in the clerk's office, on the rule- 
day next succeeding that of entering his appearance. In 
default thereof, the plaintiff may, at his election, enter an 
order (as of course) in the order-book, that the bill be taken 
pro confesso; and thereupon the cause shall be proceeded in 
ex parte, and the matter of the bill may be decreed by the 
court at any time after the expiration of thirty days from 
and after the entry of said order, if the same can be done 
without an answer, and is proper to be decreed ; or the plain- 
tiff, if he requires any discovery or answer to enable him to 
obtain a proper decree, shall be entitled to process of attach- 
ment against the defendant to compel an answer, and the 
defendant shall not, when arrested upon such process, be 
discharged therefrom, unless upon filing his answer, or 
otherwise compljdng with such order as the court or a judge 
thereof may direct as to pleading to or fully answering the 
bill, within a period to be fixed by the court or judge, and 
undertaking to speed the cause. 

19. 

When the bill is taken pro confesso the court may proceed 
to a decree at any time after the expiration of thirty days 
from and after the entry of the order to take the bill pro 
confesso, and such decree rendered shall be deemed absolute, 
imless the court shall, at the same term, set aside the same, or 
enlarge the time for filing the answer, upon cause shown 
upon motion and affidavit of the defendant. And no such 
motion shall be granted, unless upon the pa^onent of the cost 
of the plaintiff in the suit up to that time, or such part thereof 
as the court shall deem reasonable, and unless the defendant 
shall undertake to file his answer within such time as the court 
shall direct, and submit to such other terms as the court 
shall direct, for the purpose of speeding the cause. 



RULES OF PRACTICE IN EQUITY. 57 

FRAME OF BILLS. 

20. 

Every bill, in the introductory part thereof, shall contain 
the names, places of abode, and citizenship of all the parties, 
plaintiffs and defendants, by and against whom the bill is 
brought. The form, in substance, shall be as follows: ^'To 
the judges of the circuit court of the United States for the 

district of : A. B., of , and a citizen of the State 

of , brings this his bill against C. D., of , and a citizen 

of the State of -, and E. F., of , and a citizen of the 

State of . And thereupon your orator complains and 

says that," etc. 

21. 

The plaintiff, in his bill, shall be at liberty to omit, at his 
option, the part which is usually called the common con- 
federacy clause of the bill, averring a confederacy between 
the defendants to injure or defraud the plaintiff; also what is 
commonly called the charging part of the bill, setting forth 
the matters or excuses which the defendant is supposed to 
intend to set up by way of defense to the bill; also what is 
commonly called the jurisdiction clause of the bill, that the acts 
complained of are contrary to equity, and that the defendant 
is without any remedy at law; and the bill shall not be de- 
murrable therefor. And the plaintiff may, in the narrative 
or stating part of his bill, state and avoid, by counter-aver- 
ments, at his option, any matter or thing which he supposes 
will be insisted upon by the defendant by way of defense or 
excuse to the case made by the plaintiff for rehef. The 
prayer of the bill shall ask the special relief to which the 
plaintiff supposes himself entitled, and also shall contain a 
prayer for general relief; and if an injunction, or a writ of ne 
exeat regno, or any other special order, pending the suit, is 
required, it shall also be specially asked for. 

22. 

If any persons, other than those named as defendants in 
the bill, shall appear to be necessary or proper parties thereto, 
the bill shall aver the reason why they are not made parties, 
by showing them to be without the jurisdiction of the court, 



58 EULES OF PRACTICE IN EQUITY. 

or that they can not be joined without ousting the jurisdic- 
tion of the court as to the other parties. And as to persons 
who are without the jurisdiction and may properly be made 
parties, the bill may pray that process may issue to make 
them parties to the bill if they should come within the juris- 
diction. 

23. 

The prayer for process of subpoena in the bill shall contain 
the names of all the defendants named in the introductory 
part of the bill, and if any of them are known to be infants 
under age, or otherwise under guardianship, shall state the 
fact, so that the court may take order thereon, as justice may 
require upon the return of the process. If an injunction, or 
a writ of ne exeat regno, or any other special order, pending the 
suit, is asked for in the prayer for relief, that shall be suffi- 
cient, without repeating the same in the prayer for process. 

24. 

Every bill shall contain the signature of counsel annexed to 
it, which shall be considered as an affirmation on his part that, 
upon the instructions given to him and the case laid before 
him, there is good ground for the suit, in the manner in which 
it is framed. 

25. 

In order to prevent unnecessary costs and expenses, and to 
promote brevity, succinctness, and directness in the allega- 
tions of bills and answers, the regular taxable costs for every 
bill and answer shall in no case exceed the sum which is al- 
lowed in the State court of chancery in the district, if any 
there be; but if there be none, then it shall not exceed the 
sum of three dollars for every bill or answer. 

SCAHDAL AND IMPERTINENCE IN BILLS. 
26. 

Every bill shall be expressed in as brief and succinct terms 
as it reasonably can be, and shall contain no unnecessary re- 
citals of deeds^ documents, contracts, or other instruments, 
in lixc verba^ or any other impertinent matter, or any scandal- 
ous matter not relevant to the suit. If it does, it may, on 



EULES OF PRACTICE IN EQUITY. 59 

exceptions, be referred to a master, by any judge of the court, 
for impertinence or scandal; and if so found by bim, the mat- 
ter shall be expunged at the expense of the plaintiff, and he 
shall pay to the defendant all his costs in the suit up to that 
time, unless the court or a judge thereof shall otherwise order. 
If the master shall report that the bill is not scandalous or 
impertinent, the plaintiff shall be entitled to all costs occa- 
sioned by the reference. 

2T. 

No order shall be made by any judge for referring any bill, 
answer, or pleading, or other matter or proceeding, depending 
before the court, for scandal or impertinence, unless excep- 
tions are taken in writing and signed by counsel, describing 
the particular passages which are considered to be scandalous 
or impertinent ; nor unless the exceptions shall be filed on or 
before the next rule-day after the process on the bill shall be 
returnable, or after the answer or pleading is filed. And such 
order, when obtained, shall be considered as abandoned, 
unless the party obtaining the order shall, without any un- 
necessary delay, procure the master to examine and report 
for the same on or before the next succeeding rule-day, or the 
master shall certify that further time is necessary for him to 
complete the examination. 

AMENDMENT OF BILLS. 

28. 

The plaintiff shall be at liberty, as a matter of course, and 
without payment of costs, to amend his bill, in any matters 
whatsoever, before any copy has been taken out of the clerk's 
office, and in any small matters afterwards, such as filling 
blanks, correcting errors of dates, misnomer of parties, mis- 
description of premises, clerical errors, and generally in mat- 
ters of form. But if he amend in a material point ( as he may 
do of course) after a copy has been so taken, before any 
answer or plea or demurrer to the bill, he shall pay to the de- 
fendant the costs occasioned thereby, and shall, without 
delay, furnish him a fair copy thereof, free of expense, with 
suitable references to the places where the same are to be 
inserted. And if the amendments are numerous, he shall 



60 ' RULES OF PRACTICE IN EQUITY. 

furnish, in like manner, to the defendant, a copy of the whole 
bill as amended; and if there be more than one defendant, a 
copy shall be furnished to each defendant affected thereby. 

29. 

After an answer, or plea, or demurrer is put in, and before 
replication, the plaintiff may, upon motion or petition, with- 
out notice, obtain an order from any judge of the court to 
amend his bill on or before the next succeeding rule-^day, upon 
payment of costs or without payment of costs, as the court or 
a judge thereof may in his discretion direct. But after rep- 
lication filed, the plaintiff shall not be permitted to withdraw 
it and to amend his bill, except upon a special order of a 
judge of the court, upon motion or petition, after due notice 
to the other party, and upon proof by affidavit that the same 
is not made for the purpose of vexation or delay, or that the 
matter of the proposed amendment is material, and could 
not with reasonable diligence have been sooner introduced 
into the bill, and upon the plaintiff's submitting to such other 
terms as may be imposed by the judge for speeding the cause. 

30. 

If the plaintiff so obtaining any order to amend his bill after 
answer, or plea, or demurrer, or after replication, shall not file 
his amendments or amended bill, as the case may require, in 
the clerk's office on or before the next succeeding rule-day, he 
shall be considered to have abandoned the same, and the 
cause shall proceed as if no application for any amendment 
had been made. 

DEMURRERS AND PLEAS. 

31. 

No demurrer or plea shall be allowed to be filed to any bill, 
unless upon a certificate of counsel, that in his opinion it is 
well founded in point of law, and supported by the affidavit 
of the defendant; that it is not interposed for delay; and, if a 
plea, that it is true in point of fact. 



RULES OF PRACTICE IN EQUITY. 61 

32. 

The defendant may at any time before the bill is taken for 
confessed, or afterward with the leave of the court, demur or 
plead to the whole bill, or to part of it, and he may demur to 
part, plead to part, and answer as to the residue; but in 
every case in which the bill specially charges fraud or combi- 
nation, a plea to such part must be accompanied with an 
answer fortifying the plea and explicitly denying the fraud 
and combination, and the facts on which the charge is 
founded. 

33. 

The plaintiff may set down the demurrer or plea to be 
argued, or he may take issue on the plea. If, upon an issue, 
the facts stated in the plea be determined for the defendant, 
they shair avail him as far as in law and equity they ought to 
avail him. 

34. 

If, upon the hearing, any demurrer or plea is overruled, the 
plaintiff shall be entitled to his costs in the cause up to that 
period unless the court shall be satisfied that the defendant 
has good ground, in point of law or fact, to interpose the same, 
and it was not interposed vexatiously or for delay. And, 
upon the overruling of any plea or demurrer, the defendant 
shall be assigned to answer the bill, or so much thereof as is 
covered by the plea or demurrer, the next succeeding rule- 
day, or at such other period as, consistently with justice and 
the rights of the defendant, the same can, in the judgment of 
the court, be reasonably done; in default whereof, the bill 
shall be taken against him fro confesso, and the matter 
thereof proceeded in and decreed accordingly. 

35. 

If, upon the hearing, any demurrer or plea shall be allowed, 
the defendant shall be entitled to his costs. But the court 
may, in its discretion, upon motion of the plaintiff, allow him 
to amend his bill, upon such terms as it shall deem reasonable. 



62 itULES OF PRACTICE IN EQUITY. 

36. 

No demurrer or plea shall be held bad and overruled upon 
argument, only because such demurrer or plea shall not cover 
so much of the bill as it might by law have extended to. 

37. 

No demurrer or plea shall be held bad and overruled upon 
argument, only because the answer of the defendant may 
extend to some part of the same matter as may be covered by 
such demurrer or plea. 

38. 

If the plaintiff shall not reply to any plea, or set down any 
plea or demurrer for argument on the rule-day when the same 
is filed, or on the next succeeding rule-day, he shall be deemed 
to admit the truth and sufficiency thereof, and his bill shall 
be dismissed as of course, unless a judge of the court shall 
allow him further time for that purpose. 

ANSWERS. 

39. 

The rule, that if a defendant submits to answer he shall 
answer fully to all the matters of the bill, shall no longer 
apply in cases where he might by plea protect himself from 
such answer and discovery. And the defendant shall be 
entitled in all cases by answer to insist upon all matters of 
defense (not being matters of abatement, or to the character 
of the parties, or matters of form) in bar of or to the merits 
of the bill, of which he may be entitled to avail himself b}^ 
a plea in bar; and in such answer he shall not be compella- 
ble to answer any other matters than he would be compel- 
lable to answer and discover upon filing a plea in bar and an 
answer in support of such plea, touching the matters set 
forth in the bill to avoid or repel the bar or defense. Thus, 
for example, a hona-fide purchaser, for a valuable considera- 
tion without notice, may set up that defense by way of 
answer instead of plea, and shall be entitled to the same 
protection, and shall not be compellable to make any further 
answer or discovery of his title than he would be in any 
answer in support of such plea. 



RULES OF PRACTICE 11^ EQUITY. 63 

40. 

A defendant shall not be bound to answer any statement 
or charge in the bill, unless specially and particularly inter- 
rogated thereto; and a defendant shall not be bound to 
answer any interrogatory in the bill, except those interroga- 
tories which such defendant is required to answer ; and where 
a defendant shall answer any statement or charge in the bill 
to which he is not interrogated, only by stating his ignorance 
of the matter so stated or charged, such answer shall be 
deemed impertinent. 

December Term, 1850. 

Ordered, That the fortieth rule, heretofore adopted and pro- 
mulgated by this court as one of the rules of practice in suits 
in equity in the circuit courts, be, and the same is hereby, 
repealed and annulled. And it shall not hereafter be neces- 
sary to interrogate a defendant specially and particularly 
upon any statement in the bill, unless the complainant desires 
to do so, to obtain a discovery. 

41. 

The interrogatories contained in the interrogating part of 
the bill shall be divided as conveniently as may be from each 
other and numbered consecutively 1, 2, 3, etc. ; and the inter- 
rogatories which each defendant is required to answer shall 
be specified in a note at the foot of the bill, in the form or to 
the effect following, that is to say: ''The defendant (A. B.) 
is required to answer the interrogatories numbered respec- 
tively 1, 2, 3," etc.; and the office copy of the bill taken by 
each defendant shall not contain any interrogatories except 
those which such defendant is so required to answer, unless 
such defendant shall require to be furnished with a copy of 
the whole bill. 

December Term, 1871. 

Amendment to Forty -first Equity Rule. 

If the complainant, in his bill, shall waive an answer under 
oath, or shall only require an answer under oath with regard 
to certain specified interrogatories, the answer of the defend- 
ant, though under oath, except such part thereof as shall be 



64 RULES OF PRACTICE IN EQUITY. 

directly responsive to such interrogatories, shall not be evi- 
dence in his favor, unless the cause be set down for hearing 
on bill and answer onl}^; but may nevertheless be used as an 
affidavit, with the same effect as heretofore, on a motion to 
grant or dissolve an injunction, or on any other incidental 
motion in the cause; but this shall not prevent a defendant 
from becoming a witness in his own behalf under section 3 
of the act of Congress of Jul}^ 2, 1864. 

42. 

The note at the foot of the bill, specifying the interroga- 
tories which each defendant is required to answer, shall be 
considered and treated as part of the bill, and the addition 
of any such note to the bill, or any alteration in or addition 
to such note, after the bill is filed, shall be considered and 
treated as an amendment of the bill. 

43. 

Instead of the words of the bill now in use, preceding the 
interrogating part thereof, and beginning with the words ''To 
the end therefore," there shall hereafter be used words in the 
form or to the effect following: ''To the end, therefore, that 
the said defendants may, if they can, show why your orator 
should not have the relief hereby prayed, and may, upon their 
several and respective corporal oaths, and according to the 
best and utmost of their several and respective knowledge, 
remembrance, information, and belief, full, true, direct, and 
perfect answers make to such of the several interrogatories 
hereinafter numbered and set forth, as by the note hereunder 
written they are respectively required to answer; that is to 
say — 

"1. Whether, etc. 

'^2. Whether, etc." 

44. 

A defendant shall be at liberty, by answer, to decline an- 
swering any interrogatory, or part of an interrogatory, from 
answering which he might have protected himself by demur- 
rer; and he shall be at liberty so to decline, notwithstanding 
he shall answer other parts of the bill from which he might 
have protected himself by demurrer. 



RULES OF PRACTICE IN EQUITY. 65 

45. 

No special replication to any answer shall be filed. But if 
any matter alleged in the answer shall make it necessary for 
the plaintiff to amend his bill, he may have leave to amend 
the same with or without the payment of costs, as the court, 
or a judge thereof, may in his discretion direct. 

46. 

In every case where an amendment shall be made after 
answer filed, the defendant shall put in a new or supplemental 
answer on or before the next succeeding rule-day after that 
on which the amendment or amended bill is filed, unless the 
time is enlarged or otherwise ordered by a judge of the court; 
and upon his default, the like proceedings may be had as in 
cases of an omission to put in an answer. 

PARTIES TO BILLS. 
47. 

In all cases where it shall appear to the court that persons, 
who might otherwise be deemed necessary or proper parties 
to the suit, can not be made parties by reason of their being 
out of the jurisdiction of the court, or incapable otherwise of 
being made parties, or because their joinder would oust the 
jurisdiction of the court as to the parties before the court, the 
court may, in their discretion, proceed in the cause without 
making such persons parties; and in such cases the decree 
shall be without prejudice to the rights of the absent parties. 

48. 

Where the parties on either side are very numerous, and 
can not, without manifest inconvenience and oppressive 
delays in the suit, be all brought before it, the court in its 
discretion may dispense with making all of them parties, and 
may proceed in the suit, having sufficient parties before it to 
represent all the adverse interest of the plaintiffs and the 
defendants in the suit properly before it. But, in such cases, 
the decree shall be without prejudice to the rights and claims 
of all the absent parties. 

10873—07 5 



66 RULES OF PRACTICE IN EQUITY. 

49. 

In all suits concerning real estate which is vested in trustees 
by devise, and such trustees are competent to sell and give 
discharges for the proceeds of the sale, and for the rents and 
profits of the estate, such trustees shall represent the persons 
beneficially interested in the estate, or the proceeds, or the 
rents and profits, in the same manner and to the same extent 
as the executors or administrators in suits concerning per- 
sonal estate represent the persons beneficially interested in 
such personal estate ; and in such cases it shall not be neces- 
sary to make the persons beneficially interested in such real 
estates, or rents and profits, parties to the suit; but the court 
may, upon consideration of the matter on the hearing, if it 
shall so think fit, order such persons to be made parties. 

50. 

In suits to execute the trusts of a will, it shall not be neces- 
sary to make the heir at law a party; but the plantiffs shall be 
at liberty to make the heir at law a party where he desires 
to have the will established against him. 

51. 

In all cases in which the plaintiff has a joint and several 
demand against several persons, either as principals or 
sureties, it shall not be necessary to bring before the court 
as parties to a suit concerning such demand all the persons 
liable thereto; but the plaintiff may proceed against one or 
more of the persons severally liable. 

52. 

Where the defendant shall, by his answer, suggest that the 
bill is defective for want of parties, the plaintiff shall be at 
liberty, within fourteen days after answer filed, to set down 
the cause for argument upon that objection only; and the 
purpose for which the same is so set down shall be notified 
by an entry, to be made in the clerk's order-book, in the 
form or to the effect following (that is to say): ''Set down 
upon the defendant's objection for want of parties." And 
where the plaintiff shall not so set down his cause, but shall 
proceed therewith to a hearing, notwithstanding an objec- 



RULES OF PRACTICE IN EQUITY. 67 

tion for want of parties taken by the answer, he shall not, at 
the hearing of the cause, if the defendant's objection shall 
then be allowed be entitled as of course to an order for 
liberty to amend his bill by adding parties. But the court, 
if it thinks fit, shall be at liberty to dismiss the bill. 

53. 

If a defendant shall, at the hearing of a cause, object that 
a suit is defective for want of parties not having by plea or 
answer taken the objection, and therein specified by name 
or description of parties to whom the objection applies, the 
court (if it shall think fit) shall be at liberty to make a decree 
saving the rights of the absent parties. 

NOMINAL PARTIES TO BILLS. 



Where no account, payment, conveyance, or other direct 
relief is sought against a party to a suit, not being an infant, 
the party, upon service of the subpoena upon him, need not 
appear and answer the bill, unless the plaintiff specially 
requires him so to do by the prayer of his bill; but he 
may appear and answer at his option; and if he does not 
appear and answer he shall be bound by all the proceedings 
in the cause. If the plaintiff shall require him to appear 
and answer he shall be entitled to the costs of all the pro- 
ceedings against him unless the court shall otherwise direct. 

55. 

Whenever an injunction is asked for by the bill to stay 
proceedings at law, if the defendant do not enter his appear- 
ance and plead, demur, or answer to the same within the 
time prescribed therefor by these rules, the plaintiff shall be 
entitled as of course, upon motion, without notice, to such 
injunction. But special injunctions shall be grant able only 
upon due notice to the other party by the court in term or 
by a judge thereof in vacation, after a hearing, which may 
be ex "parte, if the adverse party does not appear at the time 
and place ordered. In every case where an injunction — 
either the common injunction or a special injunction — is 
awarded in vacation, it shall, unless previously dissolved 



68 EULES OF PRACTICE IN EQUITY. 

by the judge granting the same, continue until the next 
term of the court, or until it is dissolved by some other order 
of the court. 

BILLS OF REVIVOR AND SUPPLEMENTAL BILLS. 
56. 

Whenever a suit in equity shall become abated by the 
death of either party, or by any other event, the same may be 
revived by a bill of revivor or a bill in the nature of a bill of 
revivor, as the circumstances of the case may require, filed 
by the proper parties entitled to revive the same, which bill 
may be filed in the clerk's office at any time ; and, upon sug- 
gestion of the facts, the proper process of subpoena shall, as 
of course, be issued by the clerk, requiring the proper rep- 
resentatives of the other party to appear and show cause, if 
any they have, why the cause should not be revived. And 
if no cause shall be shown at the next rule-day which shall 
occur after fourteen days from the time of the service of the 
same process, the suit shall stand revived, as of course. 

57. 

Whenever any suit in equity shall become defective from 
any event happening after the filing of the bill (as, for example, 
by change of interest in the parties), or for any other reason a 
supplemental bill, or a bill in the nature of a supplemental 
bill, may be necessary to be filed in the cause, leave to file the 
same may be granted by any judge of the court on any rule- 
day upon proper cause shown and due notice to the other 
party. And if leave is granted to file such supplemental bill, 
the defendant shall demur, plead, or answer thereto on the 
next succeeding rule-day after the supplemental bill is filed in 
the clerk's office, unless some other time shall be assigned b}^ 
a judge of the court. 

58. 

It shall not be necessary in any bill of revivor or sup- 
plemental bill to set forth any of the statements in the 
original suit, unless the special circumstances of the case may 
require it. 



RULES OF PRACTICE IN EQUITY. 69 



ANSWERS. 
59. 



Every defendant may swear to his answer before any 
justice or judge of any court of the United States, or before 
any commissioner appointed by any circuit court to take 
testimony or depositions, or before any master in chancery 
appointed by any circuit court, or before any judge of any 
court of a State or Territory, or before any notary public. 

AMENDMENT OF ANSWERS. 

60. 

After an answer is put in, it may be amended, as of course, 
in any matter of form, or by filling up a blank, or correcting a 
date, or reference to a document, or other small matter, and 
be resworn, at any time before a replication is put in, or the 
cause is set down for a hearing upon bill and answer. But 
after replication, or such setting down for a hearing, it shall 
not be amended in any material matters, as by adding new 
facts or defenses, or qualifymg or altering the original state- 
ments, except by special leave of the court, or of a judge 
thereof, upon motion and cause shown, after due notice to the 
adverse party, supported, if required, by affidavit; and in 
every case where leave is so granted, the court or the judge 
granting the same may, in his discretion, require that the same 
be separately engrossed, and added as a distinct amendment 
to the original answer, so as to be distinguishable therefrom. 

EXCEPTIONS TO ANSWERS. 

CI. 

After an answer is filed on any rule-day, the plaintiff shall 
be allowed until the next succeeding rule-day to file in the 
clerk's office exceptions thereto for insufficiency, and no 
longer, unless a longer time shall be allowed for the purpose, 
upon cause shown to the court, or a judge thereof; and, if no 
exception shall be filed thereto within that period, the 
answer shall be deemed and taken to be sufficient. 



70 EULES OF PRACTICE IN EQUITY. 

62. 

When the same solicitor is employed for two or more 
defendants, and separate answers shall be filed, or other 
proceedings had, by two or more of the defendants separately, 
costs shall not be allowed for such separate answers, or other 
proceedings, unless a master, upon reference to him, shall 
certify that such separate answers and other proceedings 
were necessary or proper, and ought not to have been joined 
together. 

63. 

Where exceptions shall be filed to the answer for insuffi- 
ciency, within the period prescribed by these rules, if the de- 
fendant shall not submit to the same and file an amended 
answer on the next succeeding rule-day, the plaintiff shall 
forthwith set them down for a hearing on the next succeed- 
ing rule-day thereafter, before a judge of the court, and shall 
enter, as of course, in the order-book, an order for that pur- 
pose ; and if he shall not so set down the same for a hearing, 
the exceptions shall be deemed abandoned, and the answer 
shall be deemed sufficient; provided, however, that the court, 
or any judge thereof, may, for good cause shown, enlarge the 
time for filing exceptions, or for answering the same, in his 
discretion, upon such terms as he may deem reasonable. 

64. 

If, at the hearing, the exceptions shall be allowed, the 
defendant shall be bound to put in a full and complete answer 
thereto on the next succeeding rule-day; otherwise the plain- 
tiff shall, as of course, be entitled to take the bill, so far as the 
matter of such exceptions is concerned, as confessed, or, at his 
election, he may have a writ of attachment to compel the 
defendant to make a better answer to the matter of the excep- 
tions; and the defendant, when he is in custody upon such 
writ, shall not be discharged therefrom but by an order of the 
court, or of a judge thereof, upon his putting in such answer, 
and complying with such other terms as the court or judge 
may direct. 



RULES OF PRACTICE IN EQUITY. 71 

65. 

If, upon argument, the plaintiff's exceptions to the answer 
shall be overruled, or the answer shall be adjudged insuffi- 
cient, the prevailing party shall be entitled to all the costs 
occasioned thereby, unless otherwise directed by the court, or 
the judge thereof, at the hearing upon the exceptions. 

REPLICATION AND ISSUE. 

ee. 

Whenever the answer of the defendant shall not be except- 
ed to, or shall be adjudged or deemed sufficient, the plaintiff 
shall file the general replication thereto on or before the next 
succeeding rule-day thereafter; and in all cases where the 
general replication is filed, the cause shall be deemed, to all 
intents and purposes, at issue, without any rejoinder or other 
pleading on either side. If the plauitiff shall omit or refuse 
to file such replication within the prescribed period, the 
defendant shall be entitled to an order, as of course, for a 
dismissal of the suit; and the suit shall thereupon stand dis- 
missed, unless the court, or a judge thereof, shall, upon 
motion, for cause shown, allow a replication to be filed nunc 
pro tunc, the plaintiff submitting to speed the cause, and to 
such other terms as may be directed. 

TESTIMONY — HOW TAKEN. 

67. 

After 'the cause is at issue, commissions to take testimony 
may be taken out ia vacation as well as in term, jointly by 
both parties, or severally by either party, upon interrogatories 
filed by the party taking out the same in the clerk's office, 
ten days' notice thereof beiag given to the adverse party to 
file cross-interrogatories before the issuiag of the commission; 
and if no cross-interrogatories are filed at the expiration of the 
time the commission may issue ex parte. In all cases the 
commissioner or commissioners may be named by the court 
or by a judge thereof; and the presiding judge of the court 
exercising jurisdiction may, either in term time or in vaca- 
tion, vest ia the clerk of the court general power to name 
commissioners to take testimony. 



72 RULES OF PRACTICE IN EQUITY. 

Either party may give notice to the other that he desires 
the evidence to be adduced in the cause to be taken orally, 
and thereupon all the witnesses to be examined shall be exam- 
ined before one of the examiners of the court, or before an 
examiner to be specially appointed by the coxirt. The 
examiner, if he so request, shall be furnished with, a copy of 
the pleadings. 

Such examination shall take place in the presence of the 
parties or their agents, b^^ their counsel or solicitors, and the 
witnesses shall be subject to cross-examination and reexam- 
ination, all of which shall be conducted as near as may be in 
the mode now used in common-law courts. 

The depositions taken upon such oral examination shall be 
reduced to writing by the examiner, in the form of question 
put and answer given; provided, that, by consent of parties, 
the examiner may take down the testimony of any witness in 
the form, of narrative. 

At the request of either party, with reasonable notice, the 
deposition of any witness shall, under the direction of the 
examiner, be taken down either by a skillful stenographer or 
by a skillful typewriter, as the examiner may elect, and when 
taken stenographically shall be put into typewriting or 
other writing; provided, that such stenographer or type- 
writer has been appointed by the court, or is approved by 
both parties. 

The testimony of each witness, after such reduction to 
writing, shall be read over to him and signed by him in the 
presence of the examiner and of such of the parties or counsel 
as may attend; provided, that if the witness shall refuse to 
sign his deposition so taken, then the examiner shall sign 
the same, stating upon the record the reasons, if any, assigned 
by the witness for such refusal. 

The examiner may, upon all examinations, state any 
special matters to the court as he shall think fit; and any 
question or questions which may be objected to shall be 
noted by the examiner upon the deposition, but he shall 
not have power to decide on the competency, materiality, 
or relevancy of the questions; and the court shall have 
power to deal with the costs of incompetent, immaterial, 
or irrelevant depositions, or parts of them, as may be just. 



RULES OF PRACTICE IN EQUITY. 73 

In case of refusal of witnesses to attend, to be sworn, or 
to answer any question put by the examiner, or by counsel 
or solicitor, the same practice shall be adopted as is now 
practiced with respect to witnesses to be produced on 
examination before an examiner of said court on written 
interrogatories. 

Notice shall be given by the respective counsel or solicitors 
to the opposite counsel or solicitors, or parties, of the time 
and place of the examination, for such reasonable time as 
the examiner may fix by order in each cause. 

When the examination of witnesses before the examiner 
is concluded, the original depositions, authenticated by the 
signature of the examiner, shall be transmitted by him to 
the clerk of the court, to be there filed of record, in the 
same mode as prescribed in section 865 of the Revised 
Statutes. 

Testimony may be taken on commission in the usual way, 
by written interrogatories and cross-interrogatories, on mo- 
tion to the court in term time, or to a judge in vacation, for 
special reasons, satisfactory to the court or judge. 

Where the evidence to be adduced in a cause is to be 
taken orally, as before provided, the court may, on motion 
of either party, assign a time within which the complainant 
shall take his evidence in support of the bill, and a time 
thereafter within which the defendant shall take his evidence 
in defense, and a time thereafter within which the com- 
plainant shall take his evidence in reply; and no further 
evidence shall be taken in the cause, unless by agreement 
of the parties or by leave of court first obtained, on motion 
for cause shown. 

The expense of the taking down of depositions by a 
stenographer and of putting them into typewriting or other 
writing shall be paid in the first instance by the party 
calling the witness, and shall be imposed by the court, as 
part of the costs, upon such party as the court shall adjudge 
should ultimately bear them. 

Upon due notice given as prescribed by previous order, 
the court may, at its discretion, permit the whole, or any 
specific part, of the evidence to be adduced orally in open 
court on final hearing. 



74 RULES OF PEACTICE IN EQUITY. 

68. 

Testimony may also be taken in the cause, after it is at 
issue, by deposition, according to the act of Congress. But 
in such case, if no notice is given to the adverse party of the 
time and place of taking the deposition, he shall, upon motion 
and affidavit of the fact, be entitled to a cross-examination 
of the witness, either under a commission or by a new 
deposition taken under the acts of Congress, if a court or 
judge thereof shall, under all the circumstances, deem it 
reasonable. 

69. 

Three months, and no more, shall be allowed for the tak- 
ing of testimony after the cause is at issue, unless the court, 
or a judge thereof, shall, upon special cause shown by either 
party, enlarge the time; and no testimony taken after such 
period shall be allowed to be read in evidence at the hearing. 
Immediately upon the return of the commissions and depo- 
sitions containing the testimon}^ into the clerk's office, pub- 
lication thereof may be ordered in the clerk's office, by any 
judge of the court, upon due notice to the parties, or it may 
be enlarged, as he may deem reasonable, luider all the cir- 
cumstances; but, by consent of the parties, publication of 
the testimony may at any time pass into the clerk's office, 
such consent being in writing, and a copy thereof entered 
in the order-books, or indorsed upon the deposition or tes- 
timony. 

TESTIMONY DE BENE ESSE. 
70. 

After any bill filed and before the defendant hath answered 
the same, upon affidavit made that any of the plaintiff's wit- 
nesses are aged and infirm, or going out of the country, or 
that any one of them is a single witness to a material fact, 
the clerk of the court shall, as of course, upon the applica- 
tion of the plaintiff, issue a commission to such commissioner 
or commissioners as a judge of the court may direct, to take 
the examination of such witness or witnesses de hene esse, 
upon giving due notice to the adverse party of the time and 
place of taking his testimony. 



EULES OF PRACTICE IN EQUITY. 75 

FORM OF THE LAST INTERROGATORY. 

71. 

The last interrogatory in the written interrogatories to 
take testimony now commonly in use shall in the future be 
altered, and stated in substance thus: ''Do you know, or 
can you set forth, any other matter or thing which may be 
a benefit or advantage to the parties at issue in this cause, 
or either of them, or that may be material to the subject of 
this your examination, or the matters in question in this 
cause ? If yea, set forth the same fully and at large in your 
answer." 

CROSS-BILL. 

72. 

Where a defendant in equity files a cross-bill for discovery 
only against the plaintiff in the original bill, the defendant 
to the original bill shall first answer thereto before the origi- 
nal plaintiff shall be compellable to answer the cross-bill. 
The answer of the original plaintiff to such cross-bill may be 
read and used by the party filing the cross-bill at the hearing, 
in the same manner and under the same restrictions as the 
answer praying relief may now be read and used. 

REFERENCE TO AND PROCEEDINGS BEFORE MASTERS. 

73. 

Every decree for an account of the personal estate of a 
testator or intestate shall contain a direction to the master 
to whom it is referred to take the same to inquire and state 
to the court what parts, if any, of such personal estate are 
outstanding or undisposed of, unless the court shall other- 
wise direct. 

74. 

Whenever any reference of any matter is made to a master 
to examine and report thereon, the party at whose instance 
or for whose benefit the reference is made shall cause the 
same to be presented to the master for a hearing on or before 
the next rule-day succeeding the time when the reference 
was made; if he shall omit to do so, the adverse party shall 
be at Hberty forthwith to cause proceedings to be had before 
the master, at the costs of the party procuring the reference. 



76 EULES OF PRACTICE IN EQUITY. 

75. 

Upon every such reference, it shall be the duty of the mas- 
ter, as soon as he reasonably can after the same is brought 
before him, to assign a time and place for proceedings in the 
same, and to give due notice thereof to each of the parties, or 
their solicitors; and if either party shall fail to appear at 
the time and place appointed, the master shall be at liberty 
to proceed ex "parte, or, in his discretion, to adjourn the ex- 
amination and proceedings to a future day, giving notice to 
the absent party or his solicitor of such adjournment; and 
it shall be the duty of the master to proceed with all reason- 
able diligence in every such reference, and with the least 
practicable delay, and either party shall be at liberty to 
apply to the court, or a judge thereof, for an order to the master 
to speed the proceedings and to make his report, and to certify 
to the court or judge the reason for any delay. 

76. 

In the reports made by the master to the court, no part of 
any state of facts, charge, affidavit, deposition, examination, 
or answer brought in or used before them shall be stated or 
recited. But such state of facts, charge, affidavit, deposi- 
tion, examination, or answer shall be identified, specified, 
and referred to, so as to inform the court what state of 
facts, charge, afiidavit, deposition, examination, or answer 
were so brought in or used. 

77. 

The master shall regulate all the proceedings in every 
hearing before him, upon every such reference; and he shall 
have full authority to examine the parties in the cause, 
upon oath, touching all matters contained in the reference; 
and also to require the production of all books, papers, writ- 
ings, vouchers, and other documents applicable thereto; and 
also to examine on oath, viva voce, all witnesses produced 
by the parties before him, and to order the examination of 
other witnesses to be taken, under a commission to be issued 
upon his certificate from the clerk's office or by deposition, 
according to the act of Congress, or otherwise, as hereinafter 
provided; and also to direct the mode in which the matters 



RULES OF PEACTICE IN EQUITY. 77 

requiring evidence shall be proved before him; and generally 
to do all other acts, and direct all other inquiries and pro- 
ceedings in the matters before him, which he may deem nec- 
essary and proper to the justice and merits thereof and the 
rights of the parties. 

78. 

Witnesses who live within the district may, upon due 
notice to the opposite party, be summoned to appear before 
the commissioner appointed to take testimony, or before a 
master or examiner appointed in any cause, by subpoena in 
the usual form, which may be issued by the clerk in blank, 
and filled up by the party praying the same, or by the com- 
missioner, master, or examiner, requiring the attendance of 
the witnesses at the time and place specified, who shall be 
allowed for attendance the same compensation as for attend- 
ance in court; and if any witness shall refuse to appear or 
give evidence it shall be deemed a contempt of the court, 
which being certified to the clerk's ofiice by the commis- 
sioner, master, or examiner, an attachment may issue there- 
upon by order of the court or of any judge thereof, in the 
same manner as if the contempt were for not attending, or 
for refusing to give testimony in the court. But nothing 
herein contained shall prevent the examination of witnesses 
viva voce when produced in open court, if the court shall, in 
its discretion, deem it advisable. 

79. 

All parties accounting before a master shall bring in their 
respective accounts in the form of debtor and creditor; and 
any of the other parties who shall not be satisfied with the 
account so brought in shall be at liberty to examine the 
accounting party viva voce, or upon interrogatories, in the 
master's office, or by deposition, as the master shall direct. 

80. 

All afladavits, depositions, and documents which have 
been previously made, read, or used in the court upon any 
proceeding in any cause or matter may be used before the 
master. 



78 RULES OF PRACTICE IN EQUITY. 

81. 

The master sliall be at liberty to examine any creditor or 
other person coming in to claim before him, either upon 
written interrogatories or viva voce, or in both modes, as the 
nature of the case may appear to him to require, The evi- 
dence upon such examinations shall be taken down hj the 
master, or by some other person by his order and in his pres- 
ence, if either party requires it, in order that the same may 
be used by the court if necessary. 

82. 

The circuit courts may appoint standing masters in chan- 
cery in their respective districts, (a majority of all the judges 
thereof, including the justice of the Supreme Court, the cir- 
cuit judges, and the district judge for the district, concurring 
in the appointment,) and they may also appoint a master 
pro Jiac vice in any particular case. The compensation to be 
allowed to every master in chancery for his services in any 
particular case shall be fixed by the circuit court, in its dis- 
cretion, having regard to all the circumstances thereof, and 
the compensation shall be charged upon and borne by such 
of the parties in the cause as the court shall direct. The 
master shall not retain his report as security for his compen- 
sation; but when the compensation is allowed by the court, 
he shall be entitled to an attachment for the amount against 
the party who is ordered to pay the same, if, upon notice 
thereof, he does not pay it within the time prescribed by the 
court. 

EXCEPTIONS TO REPORT OF MASTER. 

83. 

The master, as soon as his report is ready, shall return the 
same into the clerk's office, and the day of the return shall be 
entered by the clerk in the order book. The parties shall 
have one month from the time of filing the report to file excep- 
tions thereto; and, if no exceptions are within that period 
filed by either party, the report shall stand confirmed on the 
next rule-da}^^ after the month is expired. If exceptions are 
filed, they shall stand for hearing before the court, if the 
court is then in session ; or, if not, then at the next sitting of 



EULES OF PRACTICE IN EQUITY. 79 

the court which shall be held thereafter, by adjournment or 

otherwise. 

84. 

And, in order to prevent exceptions to reports from being 
filed for frivolous causes, or for mere delay, the party whose 
exceptions are overruled shall, for every exception overruled, 
pa}^ costs to the other party, and for every exception allowed 
shall be entitled to costs ; the cost to be fixed in each case by 
the court, by a standing rule of the circuit court. 

DECREES. 

85. 

Clerical mistakes in decrees or decretal orders, or errors 
arising from any accidental slip or omission, may, at any 
time before an actual enrollment thereof, be corrected by 
order of the court or a judge thereof, upon petition, without 
the form or expense of a rehearing. 

86. 

In drawing up decrees and orders, neither the bill, nor 
answer, nor other pleadings, nor any part thereof, nor the 
report of any master, nor any other prior proceeding, shall 
be recited or stated in the decree or order; but the decree 
and order shall begin, in substance, as follows: ^^This cause 
came on to be heard (or to be further heard, as the case may 
be) at this term, and was argued by counsel ; and thereupon, 
upon consideration thereof, it was ordered, adjudged, and 
decreed as follows, viz:" [Here insert the decree or order.] 

GUARDIANS AND PROCHEIN AMIS. 
87. 

Guardians ad litem to defend a suit may be appointed by 
the court, or by any judge thereof, for infants or other per- 
sons who are under guardianship, or otherwise incapable to 
sue for themselves. All infants and other persons so inca- 
pable may sue by their guardians, if any, or by their procJiein 
ami; subject, however, to such orders as the court may 
direct for the protection of infants and other persons. 



80 RULES OF PEAOTICE IN EQUITY. 

88. 

Every petition for a rehearing shall contain the special 
matter or cause on which such rehearing is applied for, shall 
be signed by counsel, and the facts therein stated, if not 
apparent on the record, shall be verified by the oath of the 
party or by some other person. No hearing shall be granted 
after the term at which the final decree of the court shall have 
been entered and recorded, if an appeal lies to the Supreme 
Court. But if no appeal lies, the petition may be admitted 
at any time before the end of the next term of the court, in 
the discretion of the court. 

89. 

The circuit courts (a majority of all the judges thereof, 
including the justice of the Supreme Court, the circuit judges, 
and the district judge for the district, concurring therein) 
may make any other and further rules and regulations for 
the practice, proceedings, and process, mesne and final, in their 
respective districts, not inconsistent with the rules hereby 
prescribed, in their discretion, and from time to time alter 
and amend the same. 

90. 

In all cases where the rules prescribed by this court or by 
the circuit court do not apply, the practice of the circuit 
court shall be regulated by the present practice of the high 
court of chancery in England, so far as the same may reason- 
ably be apphed consistently with the local circumstances 
and local conveniences of the district where the court is 
held, not as positive rules, but as furnishing just analogies 
to regulate the practice. 

91. 

Whenever, under these rules, an oath is or may be required 
to be taken, the party may, if conscientiously scrupulous of 
taking an oath, in lieu thereof make solemn affirmation to 
the truth of the facts stated by him. 



RULES OF PRACTICE IN EQUITY. 81 

December Term, 1863. 

92. 

Ordered, That in suits in equity for the foreclosure of 
mortgages in the circuit courts of the United States, or in 
any court of the Territories having jurisdiction of the same, 
a decree may be rendered for any balance that may be found 
due to the complainant over and above the proceeds of the 
sale or sales, and execution may issue for the collection of 
the same, as is provided in the eighth rule of this court regu- 
lating the equity practice, where the decree is solely for the 
payment of money. 

October Term, 1878. 
injunctions. 

93. 

When an appeal from a final decree, in an equity suit, 
granting or dissolving an injunction, is allowed by a justice 
or judge who took part in the decision of the cause, he may, 
in his discretion, at the time of such allowance, make an 
order suspending or modifying the injunction during the 
pendency of the appeal, upon such terms, as to bond or 
otherwise, as he may consider proper for the security of the 
rights of the opposite party. 

October Term, 1881. 

94. 

Every bill brought by one or more stockholders in a cor- 
poration against the corporation and other parties, founded 
on rights which may properly be asserted by the corporation, 
must be verified by oath, and must contain an allegation 
that the plaintiff was a shareholder at the time of the trans- 
action of which he complains, or that his share had devolved 
on him since by operation of law, and that the suit is not 
a collusive one to confer on a court of the United States 
jurisdiction of a case of which it would not otherwise have 
cognizance. It must also set forth with particularity the 
efforts of the plaintiff to secure such action as he desires on 
the part of the managing directors or trustees, and, if neces- 
sary, of the shareholders, and the causes of his failure to 
obtain such action. 
10873—07 6 



82 HULES OF PRACTICE J^ EQUITY. 

The following provisions relating to equity practice are to he 
found in tJie act of 1st of June, 1872: 

Sec. 7. That whenever notice is given of a motion for an 
injunction out of a circuit or district court of the United 
States, the court or judge thereof may, if there appear to be 
danger of irreparable injury from delay, grant an order 
restraining the act sought to be enjoined until the decision 
upon the motion. Such order may be granted with or 
without security, in the discretion of the court or judge: 
Provided, That no justice of the Supreme Court shall hear or 
allow any application for an injunction or restraining order 
except within the circuit to which he is allotted, and in 
causes pending in the circuit to which he is allotted, or in 
such causes at such place outside of the circuit as the parties 
may in writing stipulate, except in causes where such appli- 
cation can not be heard by the circuit judge of the circuit, or 
the district judge of the district. 

Sec. 13. That when in any suit in equity, commenced in 
any court in the United States, to enforce any legal or equi- 
table lien or claim against real or personal property within 
the district where such suit is brought, one or more of the 
defendants therein shall not be an inhabitant of or found 
within the said district, or shall not voluntarily appear 
thereto, it shall be lawful for the court to make an order 
directing such absent defendant to appear, plead, answer, or 
demur to the complainant's bill at a certain day therein to be 
designated, which order shall be served on such absent 
defendant, if practicable, wherever found; or where such per- 
sonal service is not practicable, such order shall be published 
in such a manner as the court shall direct; and in case such 
absent defendant shall not appear, plead, answer, or demur 
within the time so limited, or within some further time to be 
allowed by the court, in its discretion, and upon proof of the 
service or publication of said order, and of the performance 
of the directions contained in the same, it shall be lawful for 
the court to entertain jurisdiction, and proceed to the hearing 
and adjudication of such suit in the same manner as if such 
absent defendant had been served with process within the 
said district; but such adjudication shall, as regards such 
absent defendant without appearance, affect his property 
within such district only. 



RULES OF PRACTICE FOR THE COURTS OF THE 
UNITED STATES 

IN 

ADMIRALTY AND MARITIME JURISDICTION, ON THE IN- 
STANCE SIDE OF THE COURT, IN PURSUANCE OF THE ACT 
OF THE 23D OF AUGUST, 1842, CHAPTER 188. 



No mesne process shall issue from the district courts in any 
civil cause of admiralty and maritime jurisdiction until the 
libel, or libel of information, shall be filed in the clerk's office 
from which such process is to issue. All process shall be 
served by the marshal or by his deputy, or, where he or they 
are interested, by some discreet and disinterested person 
appointed by the court. 



In suits in 'personam, the mesne process may be by a simple 
warrant of arrest of the person of the defendant, in the nature 
of a capias, or by a warrant of arrest of the person of the 
defendant, with a clause therein, that if he can not be found, 
to attach his goods and chattels to the amount sued for; or 
if such property can not be found, to attach his credits and 
effects to the amount sued for in the hands of the garnishees 
named therein; or by a simple monition, in the nature of a 
summons to appear and answer to the suit, as the libellant 
shall, in his libel or information, pray for or elect. 

3. 

In all suits in personam, where a simple warrant of arrest 
issues and is executed, the marshal may take bail, with suffi- 
cient sureties, from the party arrested, by bond or stipulation, 
upon condition that he will appear in the suit and abide by all 
orders of the court, interlocutory or final, in the cause, and 

83 



84 EULES OF PRACTICE IN ADMIRALTY. 

pay the money awarded by the final decree rendered therein 
in the court to which the process is returnable, or in any ap- 
pellate court. And upon such bond or stipulation summary 
process of execution may and shall be issued against the prin- 
cipal and sureties by the court to which such process is return- 
able, to enforce the final decree so rendered, or upon appeal 
by the appellate court. 

4. 

In all suits in personam, where goods and chattels, or 
credits and effects, are attached under such warrant authoriz- 
ing the same, the attachment may be dissolved by order of the 
court to which the same warrant is returnable, upon the 
defendant whose property is so attached giving a bond or 
stipulation, with sufficient sureties, to abide by all orders, 
interlocutory or final, of the court, and pay the amount 
awarded by the final decree rendered in the court to which 
the process is returnable, or in any appellate court; and upon 
such bond or stipulation, summary process of execution shall 
and may be issued against the principal and sureties by the 
court to which such warrant is returnable, to enforce the final 
decree so rendered, or upon appeal by the appellate court. 

5. 

Bonds or stipulations in admiralty suits may be given and 
taken in open court, or at chambers, or before any commis- 
sioner of the court who is authorized by the court to take 
affidavits of bail and depositions in cases pending before the 
court, or any commissioner of the United States authorized 
by law to take bail and affidavits in civil cases. 



In all suits in personam, where bail is taken, the court may, 
upon motion, for due cause shown, reduce the amount of the 
sum contained in the bond or stipulation therefor; and in all 
cases where a bond or stipulation is taken as bail, or upon dis- 
solving an attachment of property as aforesaid, if either of the 
sureties shall become insolvent pending the suit, new sureties 
may be required by the order of the court, to be given, 
upon motion, and due proof thereof. 



BULES OF PRACTICE IN ADMIRALTY. 85 

T. 

In suits in personam, no warrant of arrest, either of the per- 
son or property of the defendant, shall issue for a sum exceed- 
ing Rye hundred dollars, unless by the special order of the 
court, upon affidavit or other proper proof showing the pro- 
priety thereof. 

8. 

In all suits in rem against a ship, her tackle, sails, apparel, 
furniture, boats, or other appurtenances, if such tackle, 
sails, apparel, furniture, boats, or other appurtenances are in 
the possession or custody of any third person, the court may, 
after a due monition to such third person, and a hearing of the 
cause, if any, why the same should not be delivered over, 
award and decree that the same be delivered into the custody 
of the marshal or other proper officer, if, upon the hearing, the 
same is required by law and justice. 



In all cases of seizure, and in other suits and proceedings in 
rem, the process, unless othermse provided for by statute, 
shall be by a warrant of arrest of the ship, goods, or other 
thing to be arrested; and the marshal shall thereupon arrest 
and take the ship, goods, or other thing into his possession 
for safe custody, and shall cause public notice thereof and of 
the time assigned for the return of such process and the hear- 
ing of the cause, to be given in such newspaper within the dis- 
trict as the district court shall order; and if there is no news- 
paper published therein, then in such other public places in 
the district as the court shall direct. 

10. 

In all cases where any goods or other things are arrested, if 
the same are perishable, or are liable to deterioration, decay, 
or injury, by being detained in custody pending the suit, the 
court may, upon the application of either party, in its dis- 
cretion, order the same or so much thereof to be sold as shall 
be perishable or liable to depreciation, decay, or injury; and 
the proceeds, or so much thereof as shall be a full security to 
satisfy in decree, to be brought into court to abide the event 
of the suit; or the court may, upon the application of the 



86 RULES OF PRACTICE IN ADMIRALTY. 

claimant, order a delivery thereof to him, upon a due appraise- 
ment, to be had under its direction, either upon the claimant's 
depositing in court so much money as the court shall order, 
or upon his giving a stipulation, with sureties, in such sum 
as the court shall direct, to abide by and pay the money 
awarded by the final decree rendered by the court, or the 
appellate court, if any appeal intervenes, as the one or the 
other course shall be ordered by the court. 

11. 

In like manner, where any ship shall be arrested, the same 
may, upon the application of the claimant, be delivered to 
him upon a due appraisement, to be had under the direction 
of the court, upon the claimant's depositing in court so 
much money as the court shall order, or upon his giving a 
stipulation, with sureties, as aforesaid; and if the claimant 
shall decline any such application, then the court may, in its 
discretion, upon the application of either party, upon due 
cause shown, order a sale of such ship, and the proceeds 
thereof to be brought into coiu't or otherwise disposed of, 
as it may deem most for the benefit of all concerned. 

12. 

In all suits by material-men for supplies or repairs, or 
other necessaries, the libellant may proceed against the ship 
and freight in rem, or against the master or owner alone 
in personam. 

13. 

In all suits for mariners' wages, the libellant may proceed 
against the ship, freight, and master, or against the ship and 
freight, or against the owner or the master alone in personam, 

14. 

In all suits for pilotage, the libellant may proceed against 
the ship and master, or against the ship, or against the owner 
alone or the master alone in personam. 

15. 

In all suits for damage by collision, the libellant may pro- 
ceed against the ship and master, or against the ship alone, 
or against the master or the owner alone in personam. 



RULES OF PRACTICE IN ADMIRALTY. 87 

16. 

In all suits for an assault or beating on the high seas, or 
elsewhere within the admiralty and maritime jurisdiction, 
the suit shall be in personam only. 

17. 

In all suits against the ship or freight, founded upon a 
mere maritime hypothecation, either express or impHed, of 
the master, for moneys taken up in a foreign port for supplies 
or repairs or other necessaries for the voyage, mthout any 
claim of marine interest, the libellant may proceed either 
in rem or against the master or the owner alone in personam. 

18. 

In all suits on bottomry bonds, properly so called, the suit 
shall be in rem only against the property hypothecated, or 
the proceeds of the property, in whosesoever hands the same 
may be found, unless the master has, mthout authority, 
given the bottomry bond, or by his fraud or misconduct 
has avoided the same, or has subtracted the property, or 
unless the owner has, by his own misconduct or wrong, lost 
or subtracted the property, in which latter cases the suit 
may be in personam against the wrongdoer. 

19. 

In all suits for salvage, the suit may be in rem against the 
property saved, or the proceeds thereof, or in personam 
against the party at whose request and for whose benefit 
the salvage service has been performed. 

20. 

In all petitory and possessory suits between part o^vners or 
adverse proprietors, or by the owners of a ship or the major- 
ity thereof, against the master of a ship, for the ascertain- 
ment of the title and delivery of the possession, or for the 
possession only, or by one or more part owners against the 
others to obtain security for the return of the ship from any 
voyage undertaken without their consent, or by one or more 
part owners against the others to obtain possession of the 
ship for any voyage, upon giving security for the safe return 



88 KULES OF PRACTICE IN ADMIRALTY. 

thereof, the process shall be by an arrest of the ship, and by 
a monition to the adverse party or parties to appear and 
make answer to the suit. 

21. 

In all cases of a final decree for the payment of money, 
the libellant shall have a writ of execution, in the nature of 
2i fieri facias, commanding the marshal or his deputy to levy 
and collect the amount thereof out of the goods and chattels, 
lands and tenements, or other real estate, of the defendant 
or stipulators. 

22. 

All informations and libels of information upon seizures for 
any breach of the revenue, or navigation, or other laws of 
the United States, shall state the place of seizure, whether 
it be on land or on the high seas, or on navigable waters 
within the admiralty and maritime jurisdiction of the United 
States, and the district within which the property is brought 
and where it then is. The information or libel of informa- 
tion shall also propound in distinct articles the matters re- 
lied on as grounds or causes of forfeiture, and aver the same 
to be contrary to the form of the statute or statutes of the 
United States in such case provided, as the case may re- 
quire, and shall conclude wdth a prayer of due process to 
enforce the forfeiture, and to give notice to all persons con- 
cerned in interest to appear and show cause at the return- 
day of the process why the forfeiture should not be decreed. 

23. 

All libels in instance causes, civil or maritime, shall state 
the nature of the cause; as, for example, that it is a cause, 
civil and maritime, of contract, or of tort or damage, or of 
salvage, or of possession, or otherwise, as the case may be; 
and, if the libel be in rem, that the property is within the 
district; and, if in 'personam, the names and occupations 
and places of residence of the parties. The libel shall also 
propound and articulate in distinct articles the various alle- 
gations of fact upon which the libellant relies in support of 
his suit, so that the defendant may be enabled to answer dis- 
tinctly and separately the several matters contained in each 
article; and it shall conclude with a prayer of due process 



RULES OF PRACTICE IN ADMIRALTY. 89 

to enforce his rights, in rem or in personam (as the case 
may require), and for such rehef and redress as the court 
is competent to give in the premises. And the Kbellant may 
further require the defendant to answer on oath all inter- 
rogatories propounded by him touching all and singular the 
allegations in the libel at the close or conclusion thereof. 

24. 

In all informations and libels in causes of admiralty and 
maritime jurisdiction, amendments in matters of form may 
be made at any time, on motion to the court, as of course. 
And new counts may be filed, and amendments in matters 
of substance may be made, upon motion, at any time before 
the final decree, upon such terms as the court shall impose. 
And where any defect of form is set down by the defendant 
upon special exceptions, and is allowed, the court may, in 
granting leave to amend, impose terms upon the libellant. 

25. 

In all cases of libels in personam, the court may, in its 
discretion, upon the appearance of the defendant, where no 
bail has been taken, and no attachment of property has 
been made to answer the exigency of the suit, require the 
defendant to give a stipulation, mth sureties, in such sum 
as the court shall direct, to pay all costs and expenses which 
shall be awarded against him in the suit, upon the final 
adjudication thereof, or by any interlocutory order in the 
progress of the suit. 

26. 

In suits in rem, the party claiming the property shall verify 
his claim on oath or solemn affirmation, stating that the 
claimant by whom or on whose behalf the claim is made is 
the true and honafide owner, and that no other person is the 
owner thereof. And, where the claim is put in by an agent 
or consignee, he shall also make oath that he is duly author- 
ized thereto by the owner; or, if the property be, at the time 
of the arrest, in the possession of the master of a ship, that he 
is the lawful bailee thereof for the owner. And, upon putting 
in such claim, the claimant shall file a stipulation, with sure- 
ties, in such sum as the court shall direct, for the payment of 



90 RULES OF PRACTICE IK ADMIRALTY. 

all costs and expenses which shall be awarded against him by 
the final decree of the court, or, upon an appeal, by the appel- 
late court. 

27. 

In all libels in causes of civil and maritime jurisdiction, 
whether in rem or in personam, the answer of the defendant 
to the allegations in the libel shall be on oath or solemn affir- 
mation ; and the answer shall be full and explicit and distinct 
to each separate article and separate allegation in the libel, 
in the same order as numbered in the libel, and shall also 
answer in like manner each interrogatory propounded at the 
close of the libel. ^ 

28. 

The libellant may except to the sufficiency, or fullness, or 
distinctness, or relevancy of the answer to the articles and 
interrogatories in the libel; and, if the court shall adjudge 
the same exceptions, or any of them, to be good and valid, 
the court shall order the defendant forthwith, within such 
time as the court shall direct, to answer the same, and may 
further order the defendant to pay such costs as the court 
shall adjudge reasonable. 

29. 

If the defendant shall omit or refuse to make due answer 
to the libel upon the return-day of the process, or other day 
assigned by the court, the court shall pronounce him to be in 
contumacy and default; and thereupon the libel shall be 
adjudged to be taken jjro confesso against him, and the court 
shall proceed to hear the cause ex parte, and adjudge therein 
as to law and justice shall appertain. But the court may, in 
its discretion, set aside the default, and, upon the application 
of the defendant, admit him to make answer to the libel, at 
any time before the ffiial hearing and decree, upon his pay- 
ment of all the costs of the suit up to the time of granting 
leave therefor. 

30. 

In all cases where the defendant answers, but does not 
answer fully and explicitly and distinctly to all the matters 
in any article of the libel, and exception is taken thereto by 



^ Vide post, forty-ninth rule, page 95. 



EULES OF PEACTICE IN ADMIEALTY. 91 

the libellant, and the exception is allowed, the court may, by 
attachment, compel the defendant to make further answer 
thereto, or may direct the matter of the exception to be taken 
fro confesso against the defendant, to the full purport and 
effect of the article to which it purports to answer, and as if 
no answer had been put in thereto. 

31. 

The defendant may object, by his answer, to answer any 
allegation or interrogatory contained in the libel which will 
expose him to any prosecution or punishment for crime, or 
for any penalty or any forfeiture of his property for any penal 
offense. 

32. 

The defendant shall have a right to require the personal 
answer of the libellant upon oath or solemn affirmation to 
any interrogatories which he may, at the close of his answer, 
propound to the libellant touching any matters charged in 
the libel, or touching any matter of defense set up in the 
answer, subject to the like exception as to matters which 
shall expose the libellant to any prosecution, or pimishment, 
or forfeiture, as is provided in the thirty-first rule. In default 
of due answer by the libellant to such interrogatories the 
court may adjudge the libellant to be in default, and dismiss 
the libel, or may compel his answer in the premises, by attach- 
ment, or take the subject-matter of the interrogatory pro 
confesso in favor of the defendant, as the court, in its discre- 
tion, shall deem most fit to promote public justice. 

33. 

Where either the libellant or the defendant is out of the 
country, or unable, from sickness or other casualty, to make 
an answer to any interrogatory on oath or solemn affirmation 
at the proper time, the court may, in its discretion, in fur- 
therance of the due administration of justice, dispense there- 
with, or may award a commission to take the answer of the 
defendant when and as soon as it may be practicable. 



92 RULES OF PRACTICE IN ADMIRALTY. 

34. 

If any third person shall intervene in any cause of admiralty 
and maritime jurisdiction in rem for his own interest, and he 
is entitled, according to the cause of admiralty proceedings, 
to be heard for his own interest therein, he shall propound the 
matter in suitable allegations, to which, if admitted by the 
court, the other party or parties in the suit may be required, 
by order of the court, to make due answer ; and such further 
proceedings shall be had and decree rendered by the court 
therein as to law and justice shall appertain. But every such 
intervenor shall be required, upon filing his allegations, to 
give a stipulation, with sureties, to abide by the final decree 
rendered in the cause, and to pay all such costs and expenses 
and damages as shall be awarded by the court upon the final 
decree, whether it is rendered in the original or appellate 
court. 

35. 

The stipulations required by the last preceding rule, or on 
appeal, or in any other admiralty or maritime proceeding, 
shall be given and taken in the manner prescribed by rule 
fifth as amended. 

36. 

Exceptions may be taken to any libel, allegation, or answer 
for surplusage, irrelevancy, impertinence, or scandal ; and if, 
upon reference to a master, the exception shall be reported to 
be so objectionable, and allowed by the court, the matter shall 
be expunged, at the cost and expense of the party in whose 
libel or answer the same is found. 

37. 

In cases of foreign attachment, the garnishee shall be 
required to answer on oath or solemn affirmation as to the 
debts, credits, or effects of the defendant in his hands, and to 
such interrogatories touching the same as may be propounded 
by the libellant ; and if he shall refuse or neglect so to do, the 
court may award compulsory process in personam against 
him. If he admits any debts, credits, or effects, the same 
shall be held in his hands, liable to answer the exigency of the 
suit. 



RULES OF PRACTICE IN ADMIRALTY. 93 

38. 

In cases of mariners' wages, or bottomry, or salvage, or 
other proceeding in rem, where freight or other proceeds of 
property are attached to or are bound by the suit, which are 
in the hands or possession of any person, the court may, upon 
due apphcation, by petition of the party interested, require 
the party charged with the possession thereof to appear and 
show cause why the same should not be brought into court to 
answer the exigency of the suit ; and if no sufficient cause be 
shown, the court may order the same to be brought into court 
to answer the exigency of the suit, and upon failure of the 
party to comply with the order, may award an attachment, 
or other compulsive process, to compel obedience thereto. 

39. 

If, in any admiralty suit, the libellant shall not appear and 
prosecute his suit, according to the course and orders of the 
court, he shall be deemed in default and contumacy; and the 
court may, upon the application of the defendant, pronounce 
the suit to be deserted, and the same may be dismissed with 
costs. 

40. 

The court may, in its discretion, upon the motion of the 
defendant and the payment of costs, rescind the decree in any 
suit in which, on account of his contumacy and default, the 
matter of the libel shall have been decreed against him, and 
grant a rehearing thereof at any time within ten days after 
the decree has been entered, the defendant submitting to 
such further orders and terms in the premises as the court 
may direct. 

41. 

All sales of property under any decree of admiralty shall be 
made by the marshal or his deputy, or other proper officer 
assigned by the court, where the marshal is a party in interest, 
in pursuance of the orders of the court; and the proceeds 
thereof, when sold, shall be forthwith paid into the registry 
of the court by the officer making the sale, to be disposed of by 
the court according to law. 



94 RULES OF PRACTICE IK ADMIRALTY. 

42. 

All moneys paid into the registry of the court shall be 
deposited in some bank designated by the court, and shall be 
so deposited in the name of the court, and shall not be 
drawn out, except by a check or checks signed by a judge of 
the court and countersigned by the clerk, stating on whose 
account and for whose use it is drawn, and in what suit and 
out of what fund in particular it is paid. The clerk shall 
keep a regular book, containing a memorandum and copy of 
all the checks so drawn and the date thereof. 

43. 

Any person having an interest in any proceeds in the reg- 
istry of the court shall have a right, by petition and sum- 
mary proceeding, to intervene jpro interesse suo for delivery 
thereof to him; and upon due notice to the adverse parties, 
if any, the court shall and may proceed summarily to hear 
and decide thereon, and to decree therein according to law 
and justice. And if such petition or claim shall be deserted, 
or, upon a hearing, be dismissed, the court may, in its dis- 
cretion, award costs against the petitioner in favor of the 
adverse party. 

44. 

In cases where the court shall deem it expedient or neces- 
sary for the purposes of justice, the court may refer any 
matters arising in the progress of the suit to one or more 
commissioners, to be appointed by the court, to hear the 
parties and make report therein. And such commissioner or 
commissioners shall have and possess all the powers in the 
premises which are usually given to or exercised by masters 
in chancery in reference to them, including the power to 
administer oaths to and to examine the parties and witnesses 
touching the premises. 

45. 

All appeals from the district to the circuit court must be 
made while the court is sitting, or within such other period 
as shall be designated by the district court by its general 
rules, or by an order specially made in the particular suit; 
or in case no such rule or order be made, then within thirty 
days from the rendering of the decree. 



RULES OF PRACTICE IN ADMIRALTY. 95 
46. 

In all cases not provided for by the foregoing rules, the 
district and circuit courts are to regulate the practice of the 
said courts, respectively, in such manner as they shall deem 
most expedient for the due administration of justice in suits 
in admiralty. 

47. 

In all suits in personam, where a simple warrant of arrest 
issues and is executed, bail shall be taken by the marshal 
and the court in those cases only in which it is required by 
the laws of the State where an arrest is made upon similar or 
analogous process issuing from the State court. 

And imprisonment for debt, on process issuing out of the 
admiralty court, is abolished, in all cases where, by the laws 
of the State in which the court is held, imprisonment for 
debt has been, or shall be hereafter abolished, upon similar 
or analogous process issuing from a State court. 

48. 

The twenty-seventh rule shall not apply to cases where 
the sum or value in dispute does not exceed fifty dollars, 
exclusive of costs, unless the district court shall be of opinion 
that the proceedings prescribed by that rule are necessary 
for the purposes of justice in the case before the court. 

All rules and parts of rules heretofore adopted, inconsistent 
with this order, are hereby repealed and annulled. 

49. 

Further proof, taken in a circuit court upon an admiralty 
appeal, shall be by deposition, taken before some commis- 
sioner appointed by a circuit court, pursuant to the acts of 
Congress in that behalf, or before some officer authorized to 
take depositions by the thirtieth section of the act of Con- 
gress of the 24th of September, 1789, upon an oral examina- 
tion and cross-examination, unless the court in which such 
appeal shall be pending, or one of the judges thereof, shall, 
upon motion, allow a commission to issue to take such depo- 
sitions upon written interrogatories and cross-interrogato- 
ries. When such deposition shall be taken by oral examina- 
tion, a notification from the magistrate before whom it is to 



96 RULES OF PRACTICE IN ADMIRALTY. 

be taken, or from the clerk of the court in which such appeal 
shall be pending, to the adverse party, to be present at the 
taking of the same, and to put interrogatories, if he think fit, 
shall be served on the adverse party or his attorney, allowing 
time for their attendance after being notified not less than 
twenty-four hours, and, in addition thereto, one day, Sun- 
days exclusive, for every twenty miles' travel; provided, that 
the court in which such appeal may be pending, or either of 
the judges thereof, may, upon motion, increase or diminish 
the length of notice above required. 

50. 

When oral evidence shall be taken down by the clerk of the 
district court, pursuant to the above-mentioned section of 
the act of Congress, and shall be transmitted to the circuit 
court, the same may be used in evidence on the appeal, sav- 
ing to each party the right to take the depositions of the 
same witnesses, or either of them, if he should so elect. 

51. 

When the defendant, in his answer, alleges new facts, these 
shall be considered as denied by the libellant, and no replica- 
tion, general or special, shall be filed, unless allowed or di- 
rected by the court on proper cause shown. But within such 
time after the answer is filed as shall be fixed by the district 
court, either by general rule or by special order, the libellant 
may amend his libel so as to confess and avoid, or explain or 
add to, the new matters set forth in the answer; and within 
such time as may be fixed, in like manner, the defendant 
shall answer such amendments. 

52. 

The clerks of the district courts shall make up the records 
to be transmitted to the circuit courts on appeals, so that the 
same shall contain the following : 

1. The style of the court. 

2. The names of the parties, setting forth the original par- 
ties, and those who have become parties before the appeal^ 
if any change has taken place. 

3. If bail was taken, or property was attached or arrested, 
the process of the arrest or attachment and the service there- 



RULES OF PRACTICE IN ADMIRALTY. 97 

of; all bail and stipulations; and, if any sale has been made, 
the orders, warrants, and reports relating thereto. 

4. The libel, with exhibits annexed thereto. 

5. The pleadings of the defendant, with the exhibits an- 
nexed thereto. 

6. The testimony on the part of the libellant, and any 
exhibits not annexed to the libel. 

7. The testimony on the part of the defendant, and any 
exhibits not annexed to his pleadings. 

8. Any order of the court to which exception was made. 

9. Any report of an assessor or assessors, if excepted to, 
with the orders of the court respecting the same, and the 
exceptions to the report. If the report was not excepted to, 
only the fact that a reference was made, and so much of the 
report as shows what results were arrived at by the assessor, 
are to be stated. 

10. The final decree. 

11. The prayer for an appeal, and the action of the dis- 
trict court thereon; and no reasons of appeal shall be filed or 
inserted in the transcript. 

The following shall be omitted : 

1. The continuances. 

2. All motions, rules, and orders not excepted to which are 
merely preparatory for trial. 

3. The commissions to take depositions, notices therefor, 
their captions, and certificates of their being sworn to, unless 
some exception to a deposition in the district court was 
founded on some one or more of these; in which case, so 
much of either of them as may be involved in the exception 
shall be set out. In all other cases it shall be sufficient to 
give the name of the witness and to copy the interrogatories 
and answers, and to state the name of the commissioner, 
and the place where and the date when the deposition was 
sworn to; and, in copying all depositions taken on interroga- 
tories, the answer shall be inserted immediately following the 
question. 

2. The clerk of the district court shall page the copy of the 

record thus made up, and shall make an index thereto, and he 

shall certify the entire document, at the end thereof, under 

the seal of the court, to be a transcript of the record of the 

10873—07 7 



98 RULES OF PRACTICE IN ADMIRALTY. 

district court in the cause named at the beginning of the copy 
made up pursuant to this rule; and no other certificate of the 
record shall be needful or inserted. 

3. Hereafter, in making up the record to be transmitted to 
the circuit clerk on appeal, the clerk of the district. court shall 
omit therefrom any of the pleading, testimony, or exhibits 
which the parties by their proctors shall by written stipula- 
tion agree may be omitted; and such stipulation shall be 
certified up with the record. 



Whenever a cross-libel is filed upon any counter-claim, 
arising out of the same cause of action for which the original 
libel was filed, the respondents in the cross-libel shall give 
security in the usual amount and form, to respond in dam- 
ages, as claimed in said cross-libel, unless the court, on cause 
shown, shall otherwise direct; and all proceedings upon the 
original libel shall be stayed until such security shall be given 

54. 

When any ship or vessel shall be libeled, or the owner or 
owners thereof shall be sued, for any embezzlement, loss, 
or destruction by the master, officers, mariners, passengers, or 
any other person or persons, of any property, goods, or mer- 
chandise shipped or put on board of such ship or vessel, or 
for any loss, damage, or injury by collision, or for any act, 
matter, or thing, loss, damage, or forfeiture done, occasioned, 
or incurred, without the privity or knowledge of such owner 
or owners, and he or they shall desire to claim the benefit of 
limitation of liabihty provided for in the third and fourth 
sections of the act of March 3, 1851, entitled ^^An act to limit 
the liability of shipowners and for other purposes," now 
embodied in sections 4283 to 4285 of the Revised Statutes, 
the said owner or owners shall and may file a libel or petition 
in the proper district court of the United States, as herein- 
after specified, setting forth the facts and circumstances on 
which such hmitation of liability is claimed, and praying 
proper relief in that behalf; and thereupon said court, having 
caused due appraisement to be had of the amount or value of 



EULES OF PEAOTICE IK ADMIEALTY. 99 

the interest of said owner or owners, respectively, in such ship 
or vessel, and her freight, for the voyage, shall make an order 
for the payment of the same into com-t, or for the giving of 
a stipulation, with sureties, for payment thereof into court 
whenever the same shall be ordered; or, if the said owner or 
owners shall so elect, the said court shall, without such 
appraisement, make an order for the transfer by him or them 
of his or their interest in such vessel and freight, to a trustee 
to be appointed by the court under the fourth section of said 
act; and, upon compliance with such order, the said court 
shall issue a monition against all persons claiming dam- 
ages for any such embezzlement, loss, destruction, damage, or 
injury, citing them to appear before the said court and make 
due proof of their respective claims at or before a certain time 
to be named in said writ, not less than three months from the 
issuing of the same; and public notice of such monition shall 
be given as in other cases, and such further notice served 
through the post-office, or otherwise, as the court, in its dis- 
cretion, may direct ; and the said court shall also, on the 
application of the said owner or owners, make an order to 
restrain the further prosecution of all and any suit or suits 
against said owner or owners in respect of any such claim or 
claims. 

55. 

Proof of all claims which shall be presented in pursuance of 
said monition shall be made before a commissioner, to be 
designated by the court, subject to the right of any person 
interested to question or controvert the same; and upon the 
completion of said proofs, the commissioner shall make report 
of the claims so proven, and upon confirmation of said report, 
after hearing any exceptions thereto, the moneys paid or 
secured to be paid into court as aforesaid, or the proceeds of 
said ship or vessel and freight (after payment of costs and 
expense), shall be divided 'pro rata amongst the several 
claimants in proportion to the amount of their respective 
claims, duly proved and confirmed as aforesaid, saving, how- 
ever, to all parties any priority to which they may be legally 
entitled. 



100 RULES OF PRACTICE IN ADMIRALTY. 

56. 

In the proceedings aforesaid the said owner or owners 
shall be at liberty to contest his or their liability, or the 
liability of said ship or vessel for said embezzlement, loss, 
destruction, damage, or injury (independently of the limita- 
tion of liability claimed under said act), provided that, in his 
or their libel or petition, he or they shall state the facts and 
circumstances by reason of which exemption from liability 
is claimed; and any person or persons claiming damages as 
aforesaid, and who shall have presented his or their claim to 
the commissioner under oath, shall and may answer such 
libel or petition, and contest the right of the owner or owners 
of said ship or vessel, either to an exemption from liability or 
to a limitation of liability imder the said act of Congress, or 

both. 

57. 

The said libel or petition shall be filed and the said pro- 
ceedings had in any district court of the United States in 
which said ship or vessel may be libeled to answer for any 
such embezzlement, loss, destruction, damage, or injury; or, 
if the said ship or vessel be not libeled, then in the district 
court for any district in which the said owner or owners may 
be sued in that behalf. When the said ship or vessel has not 
been libeled to answer the matters aforesaid, and suit has not 
been commenced against the said owner or owners, or has 
been commenced in a district other than that in which the 
said ship or vessel may be, the said proceedings may be had 
in the district court of the district in which the said ship or 
vessel may be, and where it may be subject to the control of 
such court for the purposes of the case as hereinbefore pro- 
vided. If the ship have already been libeled and sold, the 
proceeds shall represent the same for the purposes of these 

rules. 

58. 

All the preceding rules and regulations for proceeding in 
cases where the owner or owners of a ship or vessel shall desire 
to claim the benefit of limitation of liability provided for in 
the act of Congress in that behalf, shall apply to the circuit 
courts of the United States where such cases are or shall be 
pending in said courts upon appeal from the district courts. 



RULES OF PRACTICE IN ADMIRALTY. 101 
59. 

In a suit for damage by collision, if the claimant of any ves- 
sel proceeded against, or any respondent proceeded against in 
personam, shall, by petition, on oath, presented before or at 
the time of answering the libel, or within such further time 
as the court may allow, and containing suitable allegations 
showing fault or negligence in any other vessel contributing 
to the same collision, and the particulars thereof, and that 
such other vessel or any other party ought to be proceeded 
against in the same suit for such damage, pray that process 
be issued against such vessel or party to that end, such 
process may be issued, and, if duly served, such suit shall 
proceed as if such vessel or party had been originally pro- 
ceeded against; the other parties in the suit shall answer the 
petition; the claimant of such vessel or such new party shall 
answer the libel; and such further proceedings shall be had 
and decree rendered by the court in the suit as to law and 
justice shall appertain. But every such petitioner shall, 
upon filing his petition, give a stipulation, with sufficient sure- 
ties, to pay to the libellant and to any claimant or new party 
brought in by virtue of such process, all such costs, damages, 
and expenses as shall be awarded against the petitioner by 
the court upon the final decree, whether rendered in the 
original or appellate court; and any such claimant or new 
party shall give the same bonds or stipulations which are 
required in like cases from parties brought in under process 
issued on the prayer of a libellant. 



